Hansard

I listened with interest to the Minister for Justice's promise that the ministerial override would be an incredibly rare event. I am reminded of Donald Dewar's remarks during the passing of the Scotland Bill that Westminster legislating on devolved affairs would be an incredibly rare event. It is has turned out to be an incredibly frequent event, the consequences of which the Parliament has to deal with. I hope that the Minister for Justice's comment today does not turn out to have exactly the same meaning as Donald Dewar's comment all those years ago.

For a long time, the SNP has been deeply committed to the concept of freedom of information. It has certainly been part of the party's policy profile for more decades than I have been a member. In 1999, it was one of our manifesto commitments. We pledged to introduce a freedom of information act to ensure that all citizens have the same right of access to information as the decision makers. For that reason, the SNP broadly welcomed the Executive's announcement that it would introduce a freedom of information act.

I suppose that I should not have been too surprised, given that the Minister for Justice is Jim Wallace. I know that he has had a long-term, personal commitment to legislation on freedom of information. I understand that, on his election as a Westminster MP 16 years ago, he was asked the automatic first question that every new MP is asked—which private member's bill he would like to promote—to which he replied, unhesitatingly, that he would like to promote a freedom of information bill. I am afraid that I have not checked Hansard, but I presume that he never got lucky in the ballot for private members' bills. However, Mr Wallace got lucky, although he may not always have felt so, when he became a power broker in the negotiations to form the Scottish Executive. As a result, he found that an opportunity to introduce a freedom of information bill was available to him at last.

I welcome the publication of legislation, although that is not what is before us today, despite what some might wish us to think. The Liberal Democrats may have been a little premature with their self-congratulations. Their draft UK manifesto and the Scottish Liberal Democrat website both trumpet the introduction of freedom of legislation. Indeed, the main masthead of the website carried for a while a scrolling banner that read:

"After only one year, Scottish Liberal Democrats have made a difference, delivering on our promises—a far-reaching freedom of information bill".

Two years down the road, we now have a draft bill. I noticed with some amusement that the website has been changed to read that the Scottish Liberal Democrats have

"set in train a rigorous freedom of information regime".

I am glad that the Scottish Liberal Democrats made that clear, because the truth is that we do not yet have a freedom of information bill and we have not yet progressed beyond the announcement of consultation on draft legislation, which I hope is not the Lib Dems' definition of delivery. If it is, I hope that they never take charge of the postal service.

Joking aside, I welcome the fact that the draft Scottish bill is stronger in three key areas than the UK Freedom of Information Act 2000. Although that act reached the statute book in November, it will not begin to come into force until May 2002. I suppose that it was thought to be safer to get the general election out of the way before opening up files that might cause embarrassment.

The draft Scottish bill is stronger, as the minister outlined. The test for prevention of disclosure is stronger, with a "substantial prejudice" test for Scotland in comparison with the simple prejudice test for the UK. The powers of the Scottish information commissioner, who will be able to order the release of information, rather than merely to recommend its release, are also stronger, and there is a wider extent of Government policy material that must be released.

I sincerely hope that as the draft bill makes its passage through the parliamentary processes it will be amended to ensure even better access to information than is currently proposed rather than move towards the more restrictive UK model— which, in my more pessimistic moments, I believe to be the likely outcome.

We should not become too complacent because, so far, the Scottish proposals look better than the UK proposals. For a start, some of the most headline-grabbing issues that the Parliament has dealt with have involved either information being unnecessarily withheld, resulting in a lack of scrutiny by Parliament, or disclosure of information being delayed for so long that that scrutiny was held up. The Chhokar case, the Carfin fiasco, lobbygate and the Holyrood building are all examples of issues where the withholding of information resulted in either lack of scrutiny or delay in scrutiny, which is just as important, by the Scottish Parliament.

The real test is whether the draft bill would have made any difference to those rows. I am sure that colleagues will deal with specific areas in which the extent of access to information allowed by the draft bill is unsatisfactory. I will concentrate on a couple of areas from my own field of interest, taking as my first example the row surrounding the Chhokar family case.

In a statement to the Parliament, the Lord Advocate acknowledged failings in the level of support and information provided during the case of the murder of Surjit Singh Chhokar. However, the veil of secrecy under which the Lord Advocate acknowledged he operates is not going to be lifted from the workings of the Crown Office. Private prisons is another example, and I have found it greatly and consistently annoying that those involved in the running of a private prison are able to refuse to disclose detailed information about costs on what I believe to be the questionable ground of commercial confidentiality. The draft bill will do nothing to bring the accountability of those who run a private prison up to the same level of our other prisons.

The Chhokar case points to one of the most disappointing omissions from the draft bill—the Crown Office. As a lawyer, I understand some of the care that must be taken in relation to what can and what cannot be disclosed about criminal allegations, but society is simply no longer prepared to accept the bland refusal to disclose any information that greets most requests for information to the Crown Office or the procurator fiscal service. Only this week, MSPs will have received details from yet another family—the Cawley family from Giffnock—which is just as puzzled and frustrated by the way in which the Crown Office handled the murder of Christopher Cawley on 8 September last year as was the Chhokar family by the way in which Surjit's murder has been dealt with.

Sadly, all MSPs will have become familiar with the other families and victims who are equally nonplussed at decisions taken in secret that often are not communicated to them and about which they feel they have every right to know more. We have let down all those people by not even attempting to widen freedom of information in that area.

I will refer briefly to other class-based exemptions. For example, there is a broad exemption for confidentiality. I mentioned commercial confidentiality in relation to private prisons, but there is a broad exemption that would allow regulated companies or lobbyists to avoid scrutiny merely by agreeing with authorities that information should be kept secret. We must examine that proposal much more closely. As I understand the draft bill, there is a proposal to allow restrictions on disclosure in existing or future legislation to take priority over the provisions of any freedom of information bill.

One of the briefings that we received said that there are about 250 statutory restrictions on disclosure in UK legislation. I wonder whether existing disclosure bans in specific pieces of legislation will be examined, either with a view to repealing those bans or to allow freedom of information legislation to override them.

I also notice that, unfortunately, the Secretary of State for Scotland and the Scotland Office will come under the less strict UK regime, rather than the Scottish regime. That means that the ministers in the Scotland Office, whose predecessors have already insulted the people of Scotland by refusing to appear before committees of the Scottish Parliament and whose department has a ballooning budget, a shrinking remit and a political role will be subject to the weaker test for disclosure of information that is in the UK Freedom of Information Act 2000.

While the draft Scottish bill may well be an improvement on the UK act on a number of levels, I am afraid that in one important area it is not only worse than the UK act but will act as a deterrent to inquiry, denying access to information to those who cannot afford it. I refer, of course, to the proposed system of charging for information.

We are in the process of creating a freedom of information regime in which the ability to gain access to information is determined by the size of a requester's bank balance. To add insult to injury, organisations can use cost as a reason for refusing requests. Under the draft bill, if the cost of locating the information does not exceed £100, there will be no charge; but if the cost is more than £100, the person making the request will be asked to pay the excess. If the cost is more than £500, the person making the request may not get the information at all. What on earth is that about?

By contrast, the regulations on fees made under the UK legislation specify that up to 10 per cent of the reasonable, marginal costs of complying with the request may be charged. That is a maximum figure and there is no requirement on an authority to use that formula or to impose any charge at all.

In conclusion, the draft bill is, in theory, marginally better than the Westminster regime but it is unlikely that it would have affected any of the major difficulties with disclosure that the Parliament has already experienced and disclosure will cost the curious Scot more than the curious Englishman will be charged for his information. That is not good enough and it is why the SNP's welcome for the draft bill is muted. I hope that, over the next few months, the Minister for Justice can be prevailed upon to turn the draft bill into something more like the bill that I suspect he would have introduced had he been lucky in the ballot for private members' bills all those years ago.

I move amendment S1M-1750.1, to insert at end:

"but nevertheless regrets: (i) the proposed high and potentially prohibitive cost of applications; (ii) the extent and nature of the exemptions, in particular the exemptions afforded to the Crown Office, and (iii) that independent decisions by the Information Commissioner may be vetoed by the First Minister, and further expresses its concern that the passing of a Freedom of Information Bill in the terms proposed by the Executive would make little difference to the culture of secrecy which continues to pervade the governance of Scotland."