Hansard

I thank Justice 1 Committee members for their contributions to the debate, which are of interest to onlookers such as me. I am pleased that the committee has agreed on the general principles of the bill.

It seems a long time ago now but, as a baby advocate, part of my living was made by turning up at rather quaint rituals in the Court of Session, such as the commission to take evidence. I quite often had to do that in advance of hearings and so on. One thing that offended me every time I did it—certainly at the stage where it became contentious—related to the recovery of medical records. It struck me that everybody and his auntie could have a good old poke through a person's medical records—everybody, that is, but the person whom they concerned. That was usually because a health board or an insurer had decided that it was not in a person's interests to have a good old poke around their medical records and that it might in fact be in their interests to prevent that person from doing that. A person had to get a court order to gain access to their own medical records. As a young advocate, that helped me to put a meal on my children's table, but I do not apologise for being offended at having to turn up in the first place.

Like Maureen Macmillan and Alasdair Morgan, I hope that the bill will mark a radical departure from one style or culture of public service to another. However, a number of contributors to the debate have jaloused quite correctly that the legislation must not be seen in isolation. It is one aspect—perhaps the most central one—of a wider process of reform in government and public service generally.

We have already started the renewal of the constitutional face of this country and the move from subjects to citizens. We have created something that people said we would never manage, although the disappointment brigade—diminished though it is—has lined up willingly all along. There is the Scotland Act 1998, and we have passed into law an act that will still be regarded in 10, 20, 50 or 100 years' time as the single most important change made in the relationship between the citizen and the state: the Human Rights Act 1998. The bill should be seen as a necessary companion to that act.

We should not forget that the Human Rights Act 1998 finds its origins in the ashes of the Holocaust and the recognition, at the end of the 20th century, of the insistent demand that we should use our best endeavours to organise our western democracies so that racists, fascists and others will never be able to use the instruments of democracy to strip the citizen of rights. The use of arbitrary power and the abuse of discretion in even the most well-meaning of societies has been challenged. The closed society is always defeated by the open one. Openness is the most powerful defensive weapon for democracy. It is the natural enemy of arbitrariness and the natural ally in the fight against injustice. As the Deputy First Minister said, information is the currency of an open, democratic society.

On any fair measure, the bill and other measures represent a substantial and hugely important set of reforms that will modernise and regenerate our constitution. Our Prime Minister said that we would change the relationship between government and the people, to give people a better sense of what it means to be a citizen and not a subject. I suspect that it is the attachment of many Conservatives to being a subject that motivates much of the discussion in that party.

Working together with our partners in Scotland we have set about changing the way in which government works and introducing freedom of information legislation. One of the crucial things about the bill—it is the difference between us and those on the right—is that it not only deals with those discretionary decisions that we can already effect by ministerial direction or decision but gives every citizen a legal right of access to information held on them by bodies throughout the public sector. We know—it will be part of the stage 2 debate—that there are variable interests that have to be balanced.

On the one hand we are told that the public interest lies in disclosure and on the other that the individual's interest lies in the privacy of their own information. On the third hand—if that is possible—we are told that the public interest lies in there being no disclosure; sometimes that means that it lies in there never being disclosure, but in many cases it means that it lies in disclosure not being premature. It is the responsibility of the Executive and the Deputy First Minister to make those decisions in the best interests of everyone.

I welcome and echo what Gordon Jackson said on the substantial prejudice formula. I believe that it delivers the principle that harm that is claimed to be caused should be real, actual and of significant substance. One does not need to be a lawyer to know that that is a pretty substantial test. There must be a probability of significant prejudice. I would relish the opportunity to make such an argument against a recalcitrant Executive. David McLetchie shows his lack of interest in taking up such a challenge.

I was going to touch on policy advice, but we may come back to that issue. It is interesting to note the absence from the press gallery of the people who benefit in large part from freedom of information regimes around the world. I hope that, if they are to be able to look in on the processes of government, we will have the opportunity to look in on the processes of an editorial conference.

I have a couple of questions for the Deputy Minister for Justice. We have talked about the change of culture in government. A number of members have made clear their appreciation of the fact that that is essential to the proper working of a freedom of information regime. I would be interested in hearing the minister's views on what we are doing to secure that.

On exemptions, many freedom of information acts around the globe have sunset clauses. I would be interested to learn what consideration has been given to that and what systematic review of exemptions will take place. Are they to be exemptions sine die or should they be constantly reviewed? I would always stand on the side of constant review and of information being disclosed thereafter.

Finally, I declare an interest as a member of the Faculty of Advocates. The Deputy First Minister and Minister for Justice will be aware that we are currently five judges down because of our responsibilities for the Lockerbie appeal. I have no difficulty in anticipating that there will be some volume of work in due course to deal with applications under the Freedom of Information (Scotland) Bill. I would like to know what consideration and discussions have taken place in relation to the implications for judicial resources.