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Justice 1 Committee, 05 Mar 2002

05 Mar 2002 · S1 · Justice 1 Committee

Item of business

Freedom of Information (Scotland) Bill: Stage 2

Matheson, Michael SNP Central Scotland Watch on SPTV

Amendment 17 is a paving amendment for amendment 86. To confuse matters, I will begin with amendment 18, which is the final amendment in the group. Amendment 18 seeks to remove the provisions on the ministerial veto in section 52. In considering the legislation so far, the minister and committee members have highlighted the need to ensure that the information commissioner is able to act independently and to do so with confidence. The information commissioner will have an important role in changing the culture within public authorities to that of one of information disclosure. A good commissioner who is prepared to take on what could sometimes be controversial issues will assist in making the legislation successful.The bill already has a number of safeguards and exemptions with regard to forms of information that are sensitive or inappropriate for disclosure. The Minister for Justice previously outlined before this committee and in the chamber the fact that the Executive has sought to achieve a balance between disclosure and non-disclosure. The provisions on the ministerial veto throw the balance against disclosure, which is detrimental to the bill.The ministerial veto allows the First Minister to veto a notice from the information commissioner for information to be made available. As the bill stands, in exercising that ministerial veto the First Minister only has to consult other members of the Executive. He does not have to consult all members of the Cabinet or raise the issue at a Cabinet meeting. It could be done by a quick phone call at 11 o'clock in the evening to a couple of his colleagues. He does not even have to have a majority of his Cabinet in favour; he only has to consult them. I believe that, if ministers consider the matter to be important, the decision should be arrived at collectively.During our stage 1 consultation, the National Union of Journalists said:"If harm cannot be demonstrated to the commissioner or to the court, what harm can exist?"—Official Report, Justice 1 Committee, 21 November 2001; c 2838.The representative of the NUJ said that the ministerial veto was not a belt-and-braces approach but"a belt, braces and straitjacket approach"—Official Report, Justice 1 Committee, 21 November 2001; c 2841..The Campaign for Freedom of Information said that there should be no veto and that, in the absence of that veto, ministers could have the right to challenge on a point of law or to review judicially a decision that was made by the information commissioner. The matter that I am talking about is probably one of the defining issues in the piece of legislation. Although, at stage 1, the minister tried to explain why the ministerial veto was required, I was not persuaded. To ensure that the balance of the legislation is in favour of disclosure, where appropriate, given the safeguards that are already present in the legislation, we should not include this draconian power.If the minister is intent on retaining the ministerial veto, there will have to be safeguards, which is what my other amendments in this group deal with. Amendment 88 deals with the period in which the certificate must be laid before the Parliament. The legislation sets no specific time scale for that, simply saying "as soon as practicable". If the First Minister were to use the ministerial veto, and given that there will have been a lengthy process including a review and an application to the commissioner by the First Minister, it would be reasonable to expect ministers to be given a time scale within which the certificate must be brought before the Parliament. That is the stage at which the Parliament will get an idea about exactly why the First Minister has sought to override the power of the information commissioner. Amendment 88 therefore says that the certificate should be laid before Parliament within seven days.Amendment 89 would provide a safeguard by ensuring that, if the First Minister used the veto, it would be subject to a substantial prejudice test and a public interest test. That would mean that, before the ministerial veto could be exercised, the onus would be placed on ministers to prove that substantial prejudice would be caused.I move amendment 17.