In the absence of action by the Scottish Government, on 1 November 2022 Katy Clark MSP launched a consultation on how to reform the Scottish freedom of information regime, with a view to introducing a Freedom of Information Reform (Scotland) Bill. Only 28 days later, the Scottish Government launched its own consultation. In an interesting turn of events, stakeholders now have two open consultations to which to respond.
Our recent article, Is it public knowledge?, addressed Ms Clark’s Bill proposal.
By way of context, recommendations for change in this area came in the Public Audit and Post-Legislative Scrutiny Committee (PAPLS Committee) report dated 19 May 2020. However, no Scottish Government consultation on effecting such change had begun by 1 November 2022, when Ms Clark’s proposal was lodged. That proposal remains open for consultation, and, at the time of writing, stakeholders can respond until 2 February 2023. A final proposal would then need to be lodged at the Scottish Parliament for MSPs to consider over one month, before the extent of support for the proposal is finally assessed.
Two competing consultations?
On 29 November 2022, the Scottish Government embarked on its own consultation, which remains open for responses until 14 March 2023. This document seeks views on the issues experienced by the public – including the press – in accessing information, and whether these can be remedied by secondary legislation, or indeed by further strengthening the Code of Practice (the Code of Practice) published under section 60 of the Freedom of Information (Scotland) Act 2002 (2002 Act).
The timing is significant. Ms Clark’s final proposal needs support from at least 18 MSPs across at least three parliamentary parties to secure a right to introduce a Bill. On the other hand, the Scottish Government can make a statement while that proposal is being considered, indicating an intention to legislate to the same effect as the proposal within two years. No right to introduce a draft Member’s Bill would then arise. Although the Scottish Government’s consultation does not hold any obvious promise of further primary legislation to reform the 2002 Act, secondary legislation does seem likely. However, while the terms of Ms Clark’s final proposal remain to be seen, it is likely to seek a much more ambitious change than the Scottish Government would intend to pursue.
A deep dive into the proposals
The Scottish Government’s consultation is based on the express view that the framework for access to information in Scotland is fundamentally sound, robust, and internationally well-regarded, comparing favourably with the Westminster system.
The consultation takes the (PAPLS) Committee’s recommendations for change as a starting point. Like the proposal by Katy Clark MSP, it grapples with how the Freedom of Information (FOI) regime should adapt to the different ways in which public services are now delivered.
The Scottish Government notes the power available under section 5 of the 2002 Act to designate any bodies that appear to exercise functions of a public nature, or to provide statutory functions under a contract with a Scottish public authority, as bodies subject to FOI obligations, after appropriate consultation. After the report on the last consultation on the further use of that power was issued in March 2020, a government paper was expected, outlining next steps. However, lockdown intervened. The report on the consultation highlighted “a key divergence in perspectives”. Individual respondents, the Campaign for Freedom of Information and, to no small extent, the Scottish Information Commissioner, were in favour of an ambitious approach to extending the scope of the 2002 Act. On the other hand, other stakeholders, “predominantly representing the third sector and many with an interest in the delivery of health and social care services”, urged caution regarding the proposals. In a post-pandemic environment, with the UK and Scottish COVID-19 Inquiries at early stages, it seems unlikely that this desire for caution will have abated.
Both consultations agree with the PAPLS Committee’s view that it should be an “overarching principle that information held by non-public sector bodies which relates to the delivery of public services and/or the spending of public funds should be accessible under Freedom of Information legislation”. However, the consultations take divergent paths towards that aim.
Ms Clark aims to achieve that by designation of all providers of social care, including private and third sector providers, stating expressly that, “if a potential provider does not wish to be covered, they need not tender” to provide public services. To achieve proportionality, she proposes that the value of any contract should determine whether designation should be imposed.
In contrast, the Scottish Government highlights that the existing Code of Practice envisages that contracts will ensure that, where services are outsourced, there is no resulting reduction in the public’s rights to access information. If information is delivered to the public authority, that information is already caught by the FOI regime of the 2002 Act. Before considering any extension to the list of bodies caught by the Act, the Scottish Government seeks to assess the potential impact of this on service providers, from large scale charitable bodies to small and medium-sized enterprises (SMEs). Meantime, it is proposed that strengthening the Code of Practice could improve access to information within the existing regime.
The Scottish Government considers the PAPLS Committee’s suggestion of use of a 'gateway clause' to bring a body within the ambit of the 2002 Act if:
- The body fulfils particular criteria relating to the provision of public services; or
- The body is in receipt of significant public funds.
However, clear criteria would be needed to define when either test was met, and the Scottish Government is expressing a desire to avoid placing barriers in the way of any SME bidding for public work. The Scottish Government seeks views on excluding SMEs and/or third sector organisations, so that they could only be brought within the ambit of the 2002 Act by specific designation under section 5, after consultation. In principle, the Scottish Government is not eager to significantly alter the 2002 Act.
Much will depend on the responses received to both consultations, and we would urge all stakeholders to carefully consider responding to both. If the Scottish Government is not able to make a suitable statement within one month of Ms Clark’s final proposal being lodged, the Member’s Bill may yet proceed. However, if the Scottish Government is committed to an alternative path, it is doubtful that Ms Clark’s Bill could secure the parliamentary votes needed to pass. A more cautious approach to FOI extension or reform seems much more likely.
Related item: Is it public knowledge?