Scottish Parliament, 24 April 2002

299 contributions from 31 members. The official report.

Introduction

Time for Reflection

David (None, Lothians)

To lead our time for reflection today I welcome the Rev John Butler, who is a minister of the Congregational Federation in Scotland.

Parliamentary Bureau Motions

David (None, Lothians)

The next item of business is consideration of Parliamentary Bureau motions. I ask Euan Robson to move business motion S1M-3025, which is the timetabling motion on stage 3 of the Freedom of Information (Scotland) Bill.

Motion moved,

That the Parliament agrees that at Stage 3 of the Freedom of Information (Scotland) Bill, debate on each of the proceedings shall be brought to a conclusion by the time limits indicated (each time limit being calculated from when Stage 3 begins and excluding any periods when the meeting is suspended)— Groups 1-6 - no later than 1 hour Groups 7-11 - no later than 1 hour 45 minutes Groups 12-15 - no later than 2 hours 15 minutes Groups 16-19 - no later than 2 hours 45 minutes Groups 20-26 - no later than 3 hours 45 minutes Motion to pass the Bill - no later than 4 hours 15 minutes.— [Euan Robson.]

Motion agreed to.

David (None, Lothians)

The second business motion is S1M-3027, which is to extend today's business and change decision time. Before Mr Robson moves the motion, let me say that the chair will accept a motion to bring forward decision time if we finish early.

Motion moved,

That the Parliament agrees that on Wednesday 24 April 2002—

(a) the meeting of the Parliament shall continue to 7.00 pm as permitted under Rule 2.2.4; and

(b) that Decision Time shall be held at 6.50 pm.— [Euan Robson.]

Motion agreed to.

Freedom of Information (Scotland) Bill: Stage 3

George Reid (Scottish National Party, Mid Scotland and Fife)

Members should have before them a copy of the bill—SP Bill 36A, as amended at stage 2—the marshalled list, which contains the amendments that I have selected for debate, and the groupings, which I have agreed.

I will skip the usual preamble and simply say that I will allow an extended voting period of two minutes for the first division that occurs after each debate on a group of amendments.

Keith Raffan (Liberal Democrat, Mid Scotland and Fife)

On a point of order, Presiding Officer. We at the back of the chamber can hear hardly anything. Can somebody do something about the sound, as I could hear hardly anything that you just said?

George Reid (Scottish National Party, Mid Scotland and Fife)

I will get the sound engineers to try to boost the volume if that is at all possible.

George Reid (Scottish National Party, Mid Scotland and Fife)

Amendment 59 is grouped with amendment 60.

Donald Gorrie (Liberal Democrat, Central Scotland)

I have a confession to make: I have become an establishment lackey. I had lodged an amendment but, as the Executive also wished to lodge an amendment on the same subject, I abandoned my wording and adopted that which was provided by the Executive. I did so on the basis that the ministers will not be able to say that the amendment is incompetent, which is what they normally do when they wish to defeat it.

The point at issue is non-contentious. As it stands, the bill suggests that public authorities could use a loophole between the time of an application being made by people who wish to see information, and the application going into the system. In that time, the public authority could hastily destroy the relevant information. I am sure that the bill did not mean that, but it could have been interpreted in that way. Amendments 59 and 60 make it absolutely clear that a public authority may not destroy requested information unless the circumstances are such that it is not reasonably practicable to prevent the destruction from occurring, such as if the stuff was in the mouth of the incinerator or something like that.

The amendments would prevent any possibility of sneaky public authorities getting away with destroying such information. The amendments are worthy, so I am happy to move amendment 59 and extol the virtues of amendment 60.

I move amendment 59.

James (Conservative, Lothians)

We support Mr Gorrie's amendments. The BSE inquiry found that ministerial papers for the previous 18 years had been destroyed immediately after the general election. Those papers could have been material in that inquiry. The principle is that evidence that could be of use in a public inquiry should not be destroyed.

Michael Matheson (Scottish National Party, Central Scotland)

The SNP supports amendments 59 and 60. Donald Gorrie raised this concern at stage 2, but the matter was not suitably addressed in committee and concerns linger. Some members may think that public authorities would not do something such as prevent the publication of requested information by quickly going round the corner and destroying it. However, if we are to ensure that the provisions of the bill work effectively, it is important to ensure that there are no loopholes. Amendments 59 and 60 seek to close such loopholes.

Jim Wallace (Liberal Democrat, Orkney Islands)

I am pleased to support amendments 59 and 60, which address concerns that were raised during the stage 2 debates. The amendments add clarity to the basic policy underpinning section 1(4) and section 64; but they leave the section 61 code of practice to amplify matters and guide authorities on procedural aspects.

We want to encourage good records management. It is therefore important that planned amendment or deletion can be carried out as part of normal records management. It is also important that, whenever reasonably practicable, requested information is not destroyed before it can be given to the applicant. The test of reasonable practicability, as mentioned in Mr Gorrie's amendment 60, acknowledges that there may be circumstances in which preventing destruction is difficult, expensive or disruptive—for example, when the files are already on a lorry that is trundling towards the incinerator. In theory, such files could be retrieved, but not reasonably and practicably.

I support amendments 59 and 60. As Mr Gorrie observed, they are in a good technical form.

Amendment 59 agreed to.

Amendment 60 moved—[Donald Gorrie]—and agreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

Amendment 54, in the name of Christine Grahame, is grouped with amendment 55.

Christine Grahame (Scottish National Party, South of Scotland)

Amendment 54 is a paving amendment for amendment 55. I lodged the amendments after being made aware of concerns about the impact of the Freedom of Information (Scotland) Bill on the Parliament's powers under section 23 of the Scotland Act 1998. I am interested in those concerns as convener of the Justice 1 Committee, which scrutinised the bill at stage 2.

Amendment 55 does two things. It seeks to make it clear that the bill has no effect on the Parliament's statutory powers under section 23 of the Scotland Act 1998, which requires persons to provide information and documents to the Parliament. The amendment also seeks to make it clear that the FOI regime has no effect on requests that the Parliament makes to persons to provide information and documents voluntarily.

As members are aware, the Parliament has wide powers under section 23 of the Scotland Act 1998 to require persons to provide information and documents. It is an offence for a person to refuse to comply with such a requirement. The Parliament's power is subject only to the limitations of section 23. In practice, the Parliament and its committees have operated by inviting and requesting information rather than by resorting to section 23 powers.

The Freedom of Information (Scotland) Bill gives individuals a new and distinct right to obtain information from Scottish public authorities. However, that right is subject to the various exemptions and limitations in the bill, which are wider than the restrictions in section 23 of the Scotland Act 1998. Section 23 is fundamental to the operation and workings of the Parliament.

On the first part of amendment 55, I want it to be clear that the bill has no impact on the Parliament's section 23 powers. I assume that it does not, as that would mean that the bill were outside the legislative competence of the Parliament. I would, however, be grateful for the minister's assurances on that point.

On the second part of amendment 55, I would be grateful for the minister's assurance that requests that the Parliament makes to Scottish public authorities will not be subject to the exemptions and limitations in the Freedom of Information (Scotland) Bill. I appreciate that that means that Scottish public authorities, including the Executive, will be under no legal obligation to comply with the Parliament's requests—but that merely reflects the position at the moment. In practice, given the existence of section 23 of the Scotland Act 1998, we do not need Scottish public authorities to be subject to a separate legal obligation to respond to our requests.

I believe that it would cause confusion if our section 23 powers were exempt from the FOI regime, but the Parliament's requests were covered by it. That could suggest to Scottish public authorities that they are not required to provide information to the Parliament if one of the exemptions in the Freedom of Information (Scotland) Bill applies. It could also lead to Scottish public authorities trying to charge the Parliament fees under section 9, as a condition of complying with the request. I would be grateful for clarification from the minister on both aspects of the amendments.

I move amendment 54.

George Reid (Scottish National Party, Mid Scotland and Fife)

We are having a few problems with the computers. Do any other members wish to speak to the amendments? As no one has indicated, I call Mr Wallace.

Jim Wallace (Liberal Democrat, Orkney Islands)

I am grateful to Christine Grahame for her explanation of amendments 54 and 55 and for raising such an important issue. I understand why she is seeking clarification and her wish to place on the record the relationship between the proposed statutory freedom of information scheme and section 23 of the Scotland Act 1998.

As Christine Grahame said, the Scotland Act is an important cornerstone of our Parliament. I can confirm that nothing in the Freedom of Information (Scotland) Bill derogates from the powers conferred by section 23 of the Scotland Act 1998. That machinery is parallel to the proposed statutory freedom of information regime and is unaffected by it.

Christine Grahame will not be surprised that I think that the amendments are unnecessary. Proposed paragraph (b) of amendment 55 might even have an unintended, but unfortunate effect. Section 23 of the Scotland Act 1998 deals with "requirements", rather than "requests", which is what the freedom of information regime is concerned with. Amendment 55's reference to requirements is not apt and is unnecessary.

However, amendment 55 would give rise to a more important difficulty. I think that the amendment is drafted so as to prevent an authority citing the freedom of information regime to withhold information required by the Parliament, but the additional reference to requests would preclude the Parliament from making requests under the freedom of information regime. I am sure that that is not what is intended.

Requests from the Parliament to certain public authorities are considered under the Executive's non-statutory code of practice on access to Scottish Executive information. However, in due course, one would expect those requests in the public sector to be considered under the terms of the freedom of information legislation. The amendment would preclude that and would call in the nuclear option of section 23 of the Scotland Act 1998.

On the basis of those assurances, and the explanation of the unintended consequences of the amendments, I hope that Christine Grahame will withdraw amendment 54.

Christine Grahame (Scottish National Party, South of Scotland)

Thank you. In the light of the minister's explanation, I seek leave to withdraw amendment 54.

Amendment 54, by agreement, withdrawn.

George Reid (Scottish National Party, Mid Scotland and Fife)

Amendment 61, in the name of Michael Matheson, is grouped with amendments 62, 65, 67, 68 and 69.

Michael Matheson (Scottish National Party, Central Scotland)

The purpose of the amendments—I will refer to them collectively as several are consequential—is to make special provision for records transferred to the keeper or to an archive service. The amendments make special provision for the National Archives of Scotland, in the name of the keeper, as it holds the records of several other public authorities. The same issue arises for other public authorities that hold archives for yet more public authorities. For example, Glasgow City Council holds records for Strathclyde Regional Council on behalf of 12 local authorities, Strathclyde fire brigade, Strathclyde police and West of Scotland Water.

The intention of the amendments is to ensure that all public authority archives are treated in the same way as those of the National Archives of Scotland, as long as the archives are publicly accessible and that copies can be provided where appropriate. As is the case with the Keeper of the Records of Scotland, it is the business of such archivists to ensure that there is public access to records held in their care, whenever a request is made. However, when a request is made in accordance with the full range of the freedom of information legislation, there is some concern that the archiving service will be required to deal with matters such as family and historical research, largely at public expense.

The professional management of records is a vital component in any freedom of information regime. The changes in the wording are intended to ensure that there is compliance with professional standards and will highlight the need to ensure that there are adequate resources to invest in archive and recording services in public authorities.

Finally, the amendments are supported by the Society of Archivists, Scotland.

I move amendment 61.

Richard Simpson (Labour, Ochil)

We understand the motives behind amendment 61, but, for various reasons, they are unnecessary or inappropriate and we cannot support them.

However, I hope to reassure Michael Matheson that the concerns of those in certain sectors of the archive community are unfounded. I remind him that the archive aspects of the bill have been welcomed by the Keeper of the Records of Scotland and the Scottish Records Advisory Council.

The amendments seek to apply to the archive service of a Scottish public authority the same arrangements as are provided in the bill for the Keeper of the Records of Scotland. They therefore betray a misunderstanding of the statutory functions of the Keeper of the Records of Scotland, the reasons why specific provisions have been provided in the bill for the keeper and the way in which those provisions are intended to operate.

The amendments fail to recognise the distinction between the records transferred to the keeper for him to hold as part of his statutory duties to maintain and provide access to the National Archives of Scotland and information that any Scottish public authority might be holding on behalf of another person. In particular, the amendments do not recognise the effect of subsection 3(2) of the bill, which provides that the information being held by an authority on behalf of another person is not to be regarded as being held. Therefore, the authority holding on behalf of another authority is not caught for that information by FOI. I reassure Michael Matheson that the effect of that meets one of the primary concerns behind the amendments.

I have a second point. The archive services of Scottish public authorities do not have the same legal standing as the keeper. They vary in nature and they do not perform the same statutory record-keeping functions as the keeper. The archive services of Scottish public authorities do not receive records from United Kingdom public authorities as part of the Scottish national archive—for example, records of UK departments whose activities relate wholly or mainly to Scotland. That role is unique to the keeper.

I have dealt with the primary concern that the amendments seek to apply the special arrangements that are available to the keeper to the non-statutory archive functions of other authorities, which are not under the keeper's statutory regime. I do not therefore propose to set out the technical reasons why each amendment is inappropriate. I am happy to write to Michael Matheson with further details if he would find that helpful.

On the basis of the explanation and the reassurances that I have provided, I ask Michael Matheson to withdraw amendment 61.

Michael Matheson (Scottish National Party, Central Scotland)

I am surprised that no other members want to contribute to the discussion. I am somewhat reassured by what the minister has said. There is concern within the profession about the management of records and the professional standards that apply to it. I understand that there is concern to the extent that archivists believe that there is a requirement for some form of legislation to try to improve those standards and they have gone to the length of drafting their own bill for that purpose. However, because of the reassurance from the Deputy Minister for Justice, I seek to withdraw amendment 61.

Amendment 61, by agreement, withdrawn.

Amendment 62 not moved.

George Reid (Scottish National Party, Mid Scotland and Fife)

Amendment 63 is in a group on its own.

Michael Matheson (Scottish National Party, Central Scotland)

The purpose of amendment 63 is that, where a function of a public authority is privatised or put into the charitable or voluntary sector, the body to which the service is to be transferred will be treated as a public authority. If it is not, the Scottish Executive will have to give reasons to the Scottish Parliament as to why it should not be classified as a public authority.

Private finance initiatives and contracting out of services mean that the bill will no longer cover many functions that public authorities used to undertake and which have been transferred or contracted out. Allowing sources of information to slip out of the freedom of information regime runs against the spirit of the bill. We should have a right to know the staffing levels in our direct labour organisations, our public hospitals, our schools and our public prisons, as we do at present, but we should also have a right to that information if those services are contracted out. The public interest remains the same, irrespective of who undertakes such roles.

Amendment 63 would address the problem of the lack of a level playing field between public authorities, such as direct labour organisations, which compete with private companies for public service contracts. Private companies, unlike public authorities, do not incur the costs of the freedom of information regime and do not have to reveal information to their rivals on request. If that loophole in the bill is not closed, the danger is that it could act as an incentive for privatisation for authorities that do not like, or do not wish, to place information in the public domain.

Those difficulties exist primarily because the Executive has failed to include in the bill a general definition of a public authority. Instead, it has chosen to provide a list of all the public authorities to which the bill will apply. The complexity of that arrangement has been highlighted in the past few weeks, as the Executive has had to lodge eight amendments to take account of institutional changes. Furthermore, the Executive had to lodge an amendment to add licensing boards to the list, which had been missed out of schedule 1.

The best way of ensuring proper democratic accountability of services that move from the public sector to private contracts would be to include a provision that applies the freedom of information regime to services that transfer to the private sector.

I move amendment 63.

Jim Wallace (Liberal Democrat, Orkney Islands)

As Mr Matheson said, amendment 63 would add all bodies to which a public authority's functions have been transferred to the list of bodies that the bill covers, provided that that would be within the Parliament's competence—we could not add reserved bodies. The amendment is superficially attractive and I understand the concerns that lie behind it, but members should understand the significant practical problems that a proposal with that somewhat indiscriminate approach would create.

It is true that amendment 63 would catch the situation in which a public authority transfers a major function to another body, but members should also be aware that it would catch even the most minor transfer of functions. For example, many public authorities run crèches for their staff. If an authority decided to pass the operation of a crèche to a local community group, that community group would be subject to the full rigours of the freedom of information regime. For example, it would have to draw up and maintain an approved publication scheme. That example sounds ridiculous, but it shows the problems with the amendment's indiscriminate, catch-all approach.

Scottish ministers would have a statutory obligation to make a designation order in respect of any such transfer of functions, which would mean that ministers would have to be omniscient. For example, they would have to know that local authorities had put a village hall into the hands of a community group.

I do not think that Mr Matheson intended such a consequence and I acknowledge his point about more major transfers of functions. However, it is not as if no safety net exists in such circumstances. Provisions allow providers of services to the public to be added to the bill case by case, and I reassure the Parliament that that power will be exercised. I hope that Executive amendment 26, which we will reach later, will be agreed to, because it further reinforces the provision to give the commissioner the express power to make recommendations to ministers about the scope of the bill. I hope that that is of particular reassurance.

It is important to point out that the bill imposes a substantial range of responsibilities and statutory duties on the public authorities that are brought under the powers of the bill. That is the reason for the Executive choosing carefully the route of listing the bodies that would be covered by the bill. The inclusion of the list means that no one should be in any doubt about the fact that they are covered and that they must respond and make provision for the range of statutory duties that will fall upon them.

As I have said, we have made provision to allow ministers to designate other bodies to be added to the list, in particular in the circumstances of a major transfer of functions. I strongly urge the Parliament not to support the indiscriminate approach that is proposed in amendment 63, but to support the scheme as set out in the bill.

George Reid (Scottish National Party, Mid Scotland and Fife)

Christine Grahame indicated that she wished to speak after the minister. I will give the minister another chance to reply before I call Michael Matheson.

Christine Grahame (Scottish National Party, South of Scotland)

The opportunity to speak has come quickly—I expected other members to come in.

I speak in support of amendment 63 and remind the minister of a recommendation in the Justice 1 Committee's stage 1 report. The recommendation, on which the committee was unanimous, relates to the provisions of amendment 63. I quote from paragraph 10:

"The Committee is concerned that many public services are provided through private/public partnerships and private finance initiatives, as well as by voluntary and community organisations, and that these organisations will only be covered by the provisions of the Bill if designated by Ministers. Whilst the Committee acknowledges that it would not be practical to list all such organisations in the Bill, it recommends that the Executive should look at whether an appropriate form of words could be inserted into the Bill to ensure that such bodies are automatically covered by the legislation, without the requirement for Ministers to designate these organisations as public authorities."

I accept that the minister has moved to a position in which he will consult the commissioner before he designates organisations. However, there is still the problem that the power remains with the minister to designate or remove. I remind the minister that the Justice 1 Committee was unanimously unhappy with that power.

Jim Wallace (Liberal Democrat, Orkney Islands)

We have, of course, considered the matter. As I indicated to the Parliament, the consequences of Michael Matheson's amendment would go far beyond the big cases. We are not talking only of consultation with the commissioner. Amendment 63 proposes that the commissioner would be able to make a recommendation, off his or her own bat, of which ministers would be expected to take account. If ministers did not do that, I rather suspect that a number of members would ensure that they did.

In my earlier remarks, I indicated that the power to designate bodies on a case-by-case basis is one that we intend to exercise. As that power requires statutory consultation, it would be invidious to name individual companies for fear that, at a later stage, we might fall foul of people saying that ministers had not engaged properly in consultation. We all know the kind of companies and operations that are under consideration. As I said, it is our intention to proceed with consultation with a view to adding bodies to the list. The important point is that those bodies should know where they stand. They should not receive a request and be able to say that they did not realise that they were covered by the legislation.

From the point of view of the applicant, and of the public authority, there should be no doubt whether the act, with all its implications, applies to a particular body.

Michael Matheson (Scottish National Party, Central Scotland)

It is important that members are reminded of the Justice 1 Committee's recommendation at stage 1, which Christine Grahame highlighted. Members will also be aware that there is an increased incidence of the transfer of public services to the private sector. I have often heard members complain of the difficulties that are involved in obtaining accurate information from those private sector organisations.

In the course of the evidence that the committee received, and which is contained in its report, Glasgow City Council stated that it believed that:

"private organisations carrying out public functions should automatically be covered on the principle that 'openness is the price of doing business with the public sector'."

I believe that a general provision should be made for public services that are transferred to the private sector. The problem with the system that the bill will introduce has been illustrated by the fact that, in the couple of weeks between stage 2 and stage 3, eight organisations have been taken off the list and one has been added. On that basis, I will press amendment 63.

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 63 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 44, Against 64, Abstentions 0.

Amendment 63 disagreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

We move to the fifth group of amendments. Amendment 1 is grouped with amendment 2.

Michael Matheson (Scottish National Party, Central Scotland)

It seems unreasonable that a company that is wholly owned by the public sector should be subject to the bill's provisions, but that a company in which private members hold a minority interest— [Interruption.]

George Reid (Scottish National Party, Mid Scotland and Fife)

Order. There is still too much private conversation in the chamber. Members cannot hear the debate. Any private conversations should be held outside the chamber.

Michael Matheson (Scottish National Party, Central Scotland)

As I said, it seems unreasonable that a company that is wholly owned by a public authority should be subject to the bill's provisions, but that a company in which private members hold a minority interest should not be. It would be easy for any public authority in such a position to sell its shares in such a business to ensure that the bill did not apply to it.

For example, City of Edinburgh Council has a majority share in Savacentre, and the UK Government has a majority share in National Air Traffic Services. If it is fair for the public sector to take a private interest in such services, the bill should also apply in the circumstances where that happens.

Amendment 2 is consequential on amendment 1, as it provides a definition of the phrase "controlling interest". As it stands, section 6 applies only to companies that are owned wholly by one public authority, and does not apply when a company is owned jointly by several authorities.

Perhaps I am being slightly paranoid about this matter. However, local authorities are increasingly entering into partnerships with the private sector to provide services. It is important that we ensure that those services are included in the provisions of the freedom of information regime.

I move amendment 1.

John McAllion (Labour, Dundee East)

When the minister replies on this group of amendments, will he address the situation that exists in Dundee? Dundee City Council has a 40 per cent share in the waste-to-energy plant that is run by Dundee Energy Recycling Ltd. If amendments 1 and 2 are not agreed to, could that plant, which deals with all the waste from Dundee as a public service, refuse to provide information to me as a local MSP, or to anyone else who sought such information, about the company under a freedom of information act?

This is an important matter. I understand that, in response to the new round of public-private partnerships in schools, which has been promoted throughout Scotland by the Scottish Executive, Dundee City Council is proposing a model whereby the council will have a share in the PPP business that runs those private schools. In those circumstances, could a company refuse to provide information to elected members on the basis that the freedom of information act did not apply to it?

Phil Gallie (Conservative, South of Scotland)

I was minded to support amendment 1, but Michael Matheson used National Air Traffic Services as an example, which causes me concern. National Air Traffic Services could well be in international competition in the not-too-distant future, and our air traffic control services could be looked at from across Europe and perhaps from Ireland. If commercial information that was close to the requirements of National Air Traffic Services were to be passed abroad, that would give me concern. Perhaps Michael Matheson could address that point when he has the opportunity to do so.

Christine Grahame (Scottish National Party, South of Scotland)

I support amendment 1. As the minister knows, there was an extensive debate among members of all parties at stage 2. Gordon Jackson's contribution was, as usual, invaluable. He said:

"The minister says that he would designate bodies under section 5 and I have no doubt that he would, but there is no power to make the Executive make a designation under section 5. If an Executive wanted a loophole, it has got it. It could cut its holdings in a body down to 95 per cent and then not designate it. Such bodies would no longer automatically be subject to the provisions of the bill, because they would not be wholly owned and the Executive could decide not to designate them."—[Official Report, Justice 1 Committee, 5 February 2002; c 3179.]

That would be true of any Executive, because this is a bill for all time.

During the same meeting, when Michael Matheson raised the matter, Jim Wallace said:

"I will do my best to find a way to address the potential abuse that members have highlighted without that having unintentional damaging effects."

I asked, in my role as convener, whether that was an undertaking and the minister replied:

"Yes. I will address the potential for abuse that has been highlighted."—[Official Report, Justice 1 Committee, 5 February 2002; c 3180.]

The minister was courteous enough to send me a letter on 18 April, which addressed other matters that were raised at stage 2, but that issue was not addressed. I look forward to the minister's answer. As I understand it, if the public owns only 99 per cent of a company and 1 per cent is privately owned, and if the Executive—an Executive of any colour—takes the view that it will not designate that company, it will not be designated.

Donald Gorrie (Liberal Democrat, Central Scotland)

I am sympathetic to the point that Michael Matheson is making. In fact, I lodged an amendment in similar terms.

I know that Executive ministers are concerned about amendment 1 as it stands. It would help if they could at least give absolute assurances on various points connected with companies providing public services. It would help if ministers could guarantee that they will respond to requests from John McAllion and others to put a body on their list under section 7, which concerns public authorities to which the act has limited application. Part of the Executive's argument is that some companies in which public authorities have a controlling interest but not the whole interest may be involved in the private sector, and that it would be unreasonable to pursue commercial information there.

If the ministers give us a guarantee that they would respond favourably, go through the consultation process and designate the sort of companies that Michael Matheson and John McAllion have mentioned—and the ones that are dealt with in section 5—I might reluctantly go along with them.

James (Conservative, Lothians)

We are minded to support this group of amendments. We feel that when ministers and public authorities have a controlling interest in companies, they should be subject to the bill.

I would be grateful if Michael Matheson could answer Phil Gallie's points about air traffic control. Section 33, which is about commercial interests and the economy, mentions that information is exempt when:

"(a) it constitutes a trade secret; or

(b) its disclosure under this Act would ... prejudice substantially the commercial interests of any person (including ... a Scottish public authority)."

Perhaps Michael Matheson could clarify that point. We are minded to support this group of amendments, subject to clarification of the exemptions.

Jim Wallace (Liberal Democrat, Orkney Islands)

Again, we have considered the amendments. Following exchanges in the Justice 1 Committee, we have looked to see whether there are ways in which a potential problem could be addressed without giving rise to unintended consequences.

It is perhaps illusory to think that we can automatically close a loophole. Wherever the threshold is set, the shareholding could be arranged or rearranged to fall below that level. If, for example, we were to say that the threshold was a 40 per cent holding by a public authority, no doubt someone would have the good idea of reducing the shareholding to 39 per cent. That is why I believe that the approach that we have suggested is one that should commend itself, because it provides the power to add companies with regard to specific functions that fall within the public sector. It is important to acknowledge that freedom of information focuses on the public sector. I recognise, as several members have said, that important public services are delivered by bodies other than public authorities. That is why the bill contains powers for such bodies to be covered.

John McAllion asked whether the Dundee waste plant, which has a 40 per cent local authority shareholding, would be covered by the legislation. The first point that I will make is that amendment 1 would not cover that situation, because 40 per cent is not a "controlling interest". However, the scheme of the bill is such that if a case was made and, after consultation, we thought that it was appropriate for a company to be covered, it could be covered under our bill. However, that would not be the case under amendment 1.

Donald Gorrie sought an assurance that we will guarantee to respond to requests. I have legal difficulties in saying that we would implement automatically every request that we received, because that would render nugatory any commitment to consultation. We could find that bodies that were due to be designated could say that we had fettered our discretion. That would be self-defeating. We would certainly want to consult on any cases that were put to us and I have given a clear commitment of our intention to use the powers that are in the bill.

In response to Christine Grahame's point, we have not left the matter purely up to ministers or helpful members of the Parliament who might draw matters to our attention. We also give the commissioner—an independent commissioner—a specific power to draw to ministers' attention bodies in which there is a public sector interest, and to whose public functions the commissioner believes ministers should consider the extension of freedom of information legislation. I say again that that will carry tremendous force when it comes from an independent commissioner, no doubt backed up by members of the Parliament who would want the Executive to respond.

Some unintended consequences would flow from Michael Matheson's amendment 1. I can answer the point about national air traffic control; it is a reserved matter that would not be covered by Scottish freedom of information legislation.

However, some interests might be prejudiced by amendment 1. For example our universities, which as public authorities will be covered by the bill, are encouraged to forge links with Scottish industry and to look for commercial applications for their research. As a result, universities regularly establish companies with a variety of partners, including some in the private and charitable sectors. Amendment 1 would impose a severe and unnecessary burden on such companies and would undermine their ability to compete effectively in the private sector. The measure might well damage the capacity of universities to generate income from sources other than public funding. The companies involved are intrinsically private. They bear no comparison to public authorities and I believe that it would not be appropriate for freedom of information legislation to cover them. Most members want universities to develop the excellence that exists and I do not want to be in the business of putting unnecessary burdens or disincentives in universities' way.

Amendment 1 would mean that the freedom of information regime applied to all functions of any company that will be included. Coverage would not be limited to functions that could be considered to be of a public nature. However, the coverage of companies that are added to the bill under section 5 will be limited to their public functions. As I said in the debate on the previous grouping of amendments, I have no doubt that the bill's approach to defining coverage is appropriate. Public authorities, which are at the heart of the bill, are listed in schedule 1. Wholly owned companies that are, in fact, emanations of public authorities, are covered automatically. Other bodies can be added case by case.

Many bodies outside the public sector deliver important public services. There should be no doubt about ministers' commitment to using the powers in the bill to catch those bodies. I repeat that we have lodged an amendment that will be considered later, which will give the commissioner an express power. I believe that that is the correct approach, which will cover the kind of circumstances that John McAllion mentioned.

John McAllion (Labour, Dundee East)

Will the Scottish Executive, as a matter of policy, give a commitment that it will use the powers to which the minister referred to designate private companies that exist expressly to deliver public services?

Jim Wallace (Liberal Democrat, Orkney Islands)

I have given as good a steer as I can. It is our intention to use the powers. The obvious candidates are cases in which important public services have a private-company element. I cannot give an absolute guarantee because that might be said later to have fettered ministerial discretion or to have rendered any consultation process a sham. Where there is public and private involvement in important public services, we will seek to use the powers. Given that, I ask Parliament to reject amendments 1 and 2.

George Reid (Scottish National Party, Mid Scotland and Fife)

Alex Fergusson has asked to intervene. Is it a new point?

Alex Fergusson (Conservative, South of Scotland)

It was a mistake, Presiding Officer.

George Reid (Scottish National Party, Mid Scotland and Fife)

In that case, we will conclude the debate on the grouping with Michael Matheson.

Michael Matheson (Scottish National Party, Central Scotland)

The minister mentioned Phil Gallie's point about air traffic control. Perhaps my use of air traffic control as an example was not wise because air traffic control is covered by the UK regime, which means that amendment 1 would not affect it and that the Scottish freedom of information regime will not apply to it.

Christine Grahame reflected on the serious concerns of the Justice 1 Committee at stage 2. We have not been provided with the reassurances that the minister gave when he spoke to the committee on the issue. Donald Gorrie and John McAllion also sought reassurances. We must keep it in mind that the bill will become legislation. A different minister or Executive could have a different interpretation of the legislation and its application. It is all very well for the minister to give his personal reassurance, but that is based on his being the minister who will make decisions in future.

I turn to the minister's comments. A number of issues must be corrected. John McAllion asked whether, if a local authority has an interest in a private company, the freedom of information regime will apply to that company. The answer is that it will not. Will we have to go to the commissioner to ask that he or she recommend to ministers that such a company should be covered by the regime?

Jim Wallace (Liberal Democrat, Orkney Islands)

In our efforts to add another goad—as it were—to the Executive, we are not saying that someone would have to go to the commissioner to persuade the commissioner to persuade the Executive. The Executive could still consult and take initiatives off its own bat, perhaps on the basis of a representation from Mr McAllion or Mr Matheson. The purpose of amendment 26—which we have still to discuss—in relation to the commissioner, is to add another avenue whereby the Executive could have its attention drawn to such matters. I believe that there would be a lot of moral pressure on the Executive to do so.

Michael Matheson (Scottish National Party, Central Scotland)

I welcome the minister's clarification. However, it is wrong to give the impression that amendment 1 will alter those provisions. It will not. Amendment 2 makes specific reference to a controlling interest,

"if a majority of shares in the company are held".

If, for whatever purpose, a public authority takes a 5 per cent interest in a private company and members persuade the minister, or the minister chooses, to have it covered by the freedom of information regime, I would have thought that the bill should automatically apply to a public authority that took a controlling interest—a majority interest—in a private company. We should not have to consider whether the legislation should apply to such a company—that is the difference. Amendment 1 would not alter what John McAllion said or the minister's point to him. If a public authority takes a majority interest in a company, we have an obligation to ensure that the freedom of information regime applies to it.

On universities and the impact that the bill may have on them, section 33 deals with commercial confidentiality. I do not see why any public authority should take a controlling interest in an important service without some public accountability in terms of providing information. It is important that members are clear that there are two ways in which matters can be dealt with. We can leave it to ministers and the commissioner to do all the work, or we can ensure that when a public authority or group of public authorities takes a majority interest in a private company, the bill automatically covers them, instead of waiting for the Executive or the minister to act.

Phil Gallie (Conservative, South of Scotland)

The minister gave a couple of examples on the effect that the bill could have on universities, with respect to setting up private partnerships, particularly on research. Could Mr Matheson give me an assurance that those research elements would be exempted under the bill?

Michael Matheson (Scottish National Party, Central Scotland)

I refer Mr Gallie to section 33, which deals with commercial interests specifically to provide exemption for commercially confidential matters. I know that research matters will come up later. If an important public institution such as a university takes a majority controlling interest in a private company, should not the public have the right to information about that? I believe that they should. That is what amendment 1 would ensure. If a university chooses to take only a 5 per cent interest, amendment 1 would not affect it. It must have a controlling majority shareholding in the company.

Richard Simpson (Labour, Ochil)

There are two points to make. First, when universities are in relationships with venture capitalists, the latter will want the universities to take a majority shareholding. Secondly, because of the way in which amendment 1 is worded, agreement to it would mean that the bill would not apply only to the public functions of the joint company, but to its private functions. That is a point that Michael Matheson has not addressed.

Michael Matheson (Scottish National Party, Central Scotland)

There are provisions in the bill that will apply to universities as public authorities. Amendment 1 would mean merely that, if a university took a controlling interest, the bill would also apply to it. I see no reason why it should be otherwise. If it is, we will end up with a two-tier system in which it is okay for the private sector to take a majority interest in a private company, but a different standard will be applied to the public sector. Amendment 1 is about continuity and equality in the provisions of the bill. I therefore press amendment 1.

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 1 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 43, Against 61, Abstentions 1.

Amendment 1 disagreed to.

Amendment 2 not moved.

George Reid (Scottish National Party, Mid Scotland and Fife)

We move to group 6. Amendment 64, in the name of Donald Gorrie, is grouped with amendment 76. In terms of the limits that were set by the timetabling motion, we have only four minutes left, Mr Gorrie. We are almost up against the buffers.

Donald Gorrie (Liberal Democrat, Central Scotland)

The purpose of amendment 64 is to temper the bill's pressure on small organisations. For example, the bill might catch small housing associations and village hall committees. Amendment 1 endeavours to allow the commissioner to say that rules can be relaxed for small organisations.

The minister's position seemed to be that either all organisations are included in the bill's provisions or all are excluded and that it would not be possible for the bill's provisions to be less rigorous for some organisations. The Executive was unwilling to accept amendment 1, so it must consider the effect of excessive bureaucracy on small organisations. I can be boring on that subject, but I will not have an opportunity to be so today.

I seek assurances from the ministers that the commissioner will be able to examine the position of small organisations and perhaps produce ready-made structures for them that would ensure that they do not have to work out the meanings of large forms, but could just sign a form, put it in a drawer and not involve themselves in lots of work. The bill aims at a good outcome, which is public accountability and public information. However, some small organisations do not have the resources to reply adequately to all the demands that might be made of them. I will listen with interest to the minister.

I move amendment 64.

George Reid (Scottish National Party, Mid Scotland and Fife)

We have two minutes left, Mr Matheson, so I will go straight to the minister, if you do not mind.

Richard Simpson (Labour, Ochil)

I will be brief. I am grateful to Donald Gorrie for explaining the thinking that lies behind amendments 64 and 76. It is clear that both amendments are well intentioned. I understand exactly what Mr Gorrie is trying to do; he is trying to make less onerous the bill's burden on small groups. However, we consider amendments 64 and 76 to be impractical and therefore unnecessary in the context of how the bill is intended to operate.

The key point is that the bill's provisions will work together as an integrated package and are indivisible. It is not possible to restrict the bill's application so that only particular sections will apply. For example, it would be inappropriate to remove the right of access or the obligation to devise and make available a publication scheme. In other words, we do not consider that it will be possible to partition the bill in such a way as to establish a lesser freedom of information regime that would impose fewer obligations on some public authorities.

Moreover, amendment 64 does not specify the fact that the application of the bill might be restricted, nor does it specify the criteria on which the Scottish information commissioner would arrive at the opinion that an authority had only limited resources. Limitation of coverage—in so far as the act will apply to specified categories of information—is already provided under section 7. I will not go into the scheduling behind that.

We understand the intention behind amendment 64, but feel that it is inappropriate, and I ask Donald Gorrie to withdraw it. We will, however, pursue the matter of providing appropriate guidance and help to small organisations.

Amendment 64, by agreement, withdrawn.

George Reid (Scottish National Party, Mid Scotland and Fife)

We completed that group of amendments just before the bell. We now come to group 7. Amendment 12 is grouped with amendments 56, 22, 58, 28 and 36. I point out that amendment 12 does not pre-empt amendment 56 and that amendment 22 does not pre-empt amendment 58. In other words, if amendment 12 is agreed to, amendment 56 can still be agreed to and if amendment 22 is agreed to, amendment 58 can still be agreed to.

Jim Wallace (Liberal Democrat, Orkney Islands)

The four Executive amendments in this group—amendments 12, 22, 28 and 36—address an issue to which the Parliament is right to give much attention and which my officials have discussed in detail with the Disability Rights Commission. The four amendments have the commission's support.

It has been our policy from the outset that it is to the benefit of both the applicant and the authority in question to have a clear, verifiable record of precisely what was requested and when. Not only does that support the effective administration of a request, it will be of particular importance in the event of some dispute, particularly an appeal. That was why the bill as introduced stipulated that requests should be in writing.

However, the Justice 1 Committee made it clear that disabled people must be able to use other formats that reflect their needs. In the course of our discussions with the Disability Rights Commission, it became apparent that the policy should require that any format is appropriate as long as it provides the applicant and the authority with a clear permanent record of the request. The Executive amendments assure just that. Any format may be used as long as it can provide the authority and the applicant with a clear record of the request. Amendments 56 and 58 make no reference to permanency, and would not ensure that applicants and authorities had a clear record of the request.

Concern has been expressed about how requests over the telephone, for example, would be handled. Let me explain clearly how that would work. If an authority received a phone request from an applicant who was unable to make a request in writing or some other permanent format, that authority would be under a statutory duty to provide advice and assistance. The authority would be obliged, by a legal duty, to help the person to make a formal request.

In such a case, the authority could record the request on to an audio tape, for example, which would ensure that there was a permanent record of it. Our four amendments in this group provide for a permanent record, which is essential and which works to the benefit of the authority and, moreover, the applicant. Read with the rest of the bill, they ensure that those who are unable to make a request in a permanent format are given all the assistance that they need to make a formal request.

Kate Maclean (Labour, Dundee West)

Would the onus to record such a telephone request in a permanent format be on the authority in question or on the person making the request?

Jim Wallace (Liberal Democrat, Orkney Islands)

I am grateful for that question. I draw the attention of Kate Maclean and the Parliament to section 15, which sets out the following statutory duty:

"A Scottish public authority must, so far as it is reasonable to expect it to do so, provide advice and assistance to a person who proposes to make, or has made, a request for information to it."

That duty, supplemented by the code of guidance, means that responsibility will fall very much on the shoulders of the public authority. It would have to put the request of a person who, for whatever reason, was not capable of making it in a formal way into a form that triggered freedom of information.

The Disability Rights Commission particularly welcomed the fact that amendments 12, 22 and 28 make no specific reference to disability. Many people do not consider themselves to be disabled as defined by the Disability Discrimination Act 1995. Others are unable to make a request in writing for reasons other than disability, such as illiteracy. Any applicant may make a request in any form, provided that it can be used for subsequent reference.

In its briefing for stage 3, the disability agenda Scotland consortium said:

"Disabled people should have the same right to information as non-disabled people. No more, no less."

We believe that these amendments, together with the commissioner's powers and the guidance, can and will deliver that.

The Executive amendments apply to all three sections that deal with the applicant's engagement with the appeals procedure. The initial request for an appeal, the requirement for an internal review and the appeal to the commissioner are all covered by the amendments. It should be noted that amendments 56 and 58 would not cover an appeal to the commissioner.

I ask Parliament to support the Executive amendments, which have been developed with the Disability Rights Commission and which relate to an issue that we took very seriously. We worked hard to devise amendments that address the concerns that have been expressed. I also ask Parliament to reject amendments 56 and 58, as I firmly believe that they could work against the interests of both authorities and applicants. A clear record of request will be to the benefit of both parties.

I move amendment 12.

George Reid (Scottish National Party, Mid Scotland and Fife)

I invite Lord James Douglas-Hamilton to speak to amendment 56 and the other amendments in the group.

James (Conservative, Lothians)

In our view, if Parliament proceeds with the bill, the rights of the disabled should be enshrined fully in the legislation. I am very grateful to the Royal National Institute for the Blind, supported by other charities involved with disability, for highlighting the problems that are faced by those who suffer from blindness and other disabilities. The amendments in my name were lodged with the support of RNIB Scotland, the Royal National Institute for Deaf People Scotland, ENABLE, Capability Scotland, the Scottish Association for Mental Health and Sense Scotland.

As the minister has confirmed, section 8 contains the expression

"in an alternative format".

That is of particular importance to those who are blind or partially sighted, as it is the standard phrase used to describe alternatives to print, such as Braille, audio tape, large print or disk. To add the words

"or made by alternative means",

as amendment 56 proposes, would ensure that the interests of a wider group of disabled people are protected. Such means could include the use of text phone or British Sign Language interpretation. Amendment 56 is altogether reasonable and would protect the rights of disabled persons.

The omission of the phrase

"or made by alternative means"

may be inadvertent, but we should be very sensitive to the needs of those citizens who, through no fault of their own, are disabled. Those persons may have sensory disabilities, including hearing or sight loss, or learning disabilities.

The difficulty with amendments 12, 22 and 28 is that they include the expression "some permanency". Unfortunately, that will have the effect of excluding those disabled persons whose disability prevents them from making a communication that has some permanency. I will provide the Deputy First Minister with some examples. A blind person might telephone an authority to request information because they cannot write. A deaf person might use the services of TypeTalk, which involves sitting at a keyboard and typing a message to an operator, who relays it verbally. Would those methods of making a request have permanency? Neither the minister's amendments nor the bill as it stands indicates whether a request made by TypeTalk or by telephone would have some permanency. That is why I think the minister's approach to this matter is defective and that further sympathetic consideration needs to be given to the interests of the disabled.

Amendment 36, in the name of the minister, is not strictly necessary. It would be necessary only if the bill contained no provisions to protect the interests of the disabled. It was the unanimous view of the Justice 1 Committee that the rights of the disabled should be included in the bill. If that premise is accepted, it follows that it is desirable to include a definition of discrimination. Such a definition is included in the Disability Discrimination Act 1995. It is appropriate to use that definition, as we are not seeking to invent a new definition. On behalf of the disabled, we will press amendments 56 and 58 to a vote.

George Reid (Scottish National Party, Mid Scotland and Fife)

I must keep my eye on the clock, so I ask members to keep their contributions reasonably tight.

Maureen Macmillan (Labour, Highlands and Islands)

I was one of the signatories to the original amendment at stage 2 that put the requirement for applications that were not made in writing to be accepted from people with disabilities. I was especially concerned by the Executive's amendments, because the original stage 2 amendments were unanimously supported in committee. However, I have listened to the minister and I accept that our original amendments were too narrow. They excluded people who would not come under the bill because they are not disabled but who cannot read or write. The Justice 1 Committee asked specifically for people with literacy problems to be included, but the committee's amendments did not make provision for a permanent record to be kept of a request, which would obviously disadvantage the applicant. Permanent records do not need to be kept in writing—they can be kept as audio records. There are many ways of keeping a permanent record.

I welcomed the minister's explanation of how things will work in practice. He mentioned that the code of guidance to local authorities will explain what best practice is. When the bill is enacted, I ask the minister to monitor how the measures in question work. I seek his assurance that if the proposed set-up does not work well and does not advantage disabled people and people with literacy problems, the code of guidance will be tightened up.

Donald Gorrie (Liberal Democrat, Central Scotland)

I found the issue very difficult. I am sure that all members wish to ensure that disabled people have full access to the opportunities that this excellent bill will afford. How is that to be achieved? Some people who are conversant with disability support the Executive's amendments; other people who are well-versed in disability denounce the Executive's amendments.

The Executive's proposals are reasonable—the full range of people will be covered by the section that deals with the requirement on the public authority to give assistance and by the sections that say that disability rights apply across the board. I seek an assurance that there will be full consultation with the various groups—some of which are still unhappy with the Executive's proposals—in drawing up the code of practice and that the points that those groups raise will be fully met in the code of practice. If that is done and the bill is enacted in good faith, the disabled community will be fully catered for and will have a fair deal. On that basis, I am prepared to go along with the Executive.

Brian Fitzpatrick (Labour, Strathkelvin and Bearsden)

Like Maureen Macmillan and Donald Gorrie, I had some anxiety about the Executive's position on the issue. I welcome the assurance that the Deputy First Minister gave and therefore will not support amendments 56 and 58.

We must pay careful attention to what the Deputy First Minister says about the needs for permanency. Those needs do not amount to a kind of civil service explanation of what the Executive wants; rather, they represent an attempt to assure people who make requests of central Government or of local government that they can rely on the information that is given to them and that they can act on that information. That is an important factor.

I am not convinced that the instance that Lord James Douglas-Hamilton gave would be outwith the ambit of the arrangements for permanency. I would be interested to hear the Deputy First Minister's view on that.

I welcome what the minister said about the onus lying on the authority.

Like Donald Gorrie, I urge on ministers the need to ensure continuing dialogue with people with disability and the organisations that represent them, both on implementation, which will be key, and to ensure that equality of access is a key principle of the FOI regime. No one in the chamber would demur from that principle. I suspect that—

George Reid (Scottish National Party, Mid Scotland and Fife)

Briefly, please.

Brian Fitzpatrick (Labour, Strathkelvin and Bearsden)

People with disability and their organisations should be closely involved in monitoring the efficacy of those arrangements. With those assurances in mind, I am content to accept the Executive's position.

George Reid (Scottish National Party, Mid Scotland and Fife)

I call Michael Matheson—briefly, please, Mr Matheson.

Michael Matheson (Scottish National Party, Central Scotland)

I will be brief, Presiding Officer.

I note that there has been considerable concern in the disability community about this issue. RNIB Scotland, in its briefing, Capability Scotland, Enable, Sense Scotland and the Scottish Association for Mental Health all expressed that concern. My comments refer particularly to the Executive's amendment 12, which will delete a provision that was inserted at stage 2 to make specific provision for disabled people. I believe that amendment 12 is a step backwards and does not provide disabled people with the assurance that disabled organisations believe is required to ensure that the bill's provisions are implemented equally for everyone, irrespective of whether they have a disability.

Richard Simpson (Labour, Ochil)

This debate has been helpful. I hope that we have reassured people about our intention, which Brian Fitzpatrick put clearly, that the bill should be about equality of access for all our citizens. That is a key principle in the bill. That principle should also apply to all disabled persons—there should be no discrimination between different groups of disabled persons.

The issue of permanency is important. We do not want the person who receives a request for information to get out of that request because they have made no permanent record of it. We are determined that the authorities that fall within the scope of the act ensure that they achieve the means by which all our disabled citizens have their request for information recorded in whatever form is appropriate to their disability. That is a crucial point. To use James Douglas-Hamilton's example, if someone who is blind were to telephone with a request, they would be offered the opportunity of having that request recorded in a way that would allow them to verify it. It is not only the recording and permanency of the request that are important, as the person who makes that request will have the opportunity to verify what they are requesting. The same applies to people who are deaf.

The problem with amendment 56 is that every telephone call—that is, calls made by everyone, not just by disabled people—would constitute a request for information under the act and would therefore have to be recorded in some way. That would create a major bureaucratic problem. We believe that amendments 12, 22, 28 and 36 cover the situation appropriately. Through the use of a statutory duty and a legal duty, we will require the authority to respond to the needs of the applicant.

Other points were made in the debate. Both Maureen Macmillan and Brian Fitzpatrick referred to the question whether we would monitor the outcome of our amendments. Not only will we monitor that outcome, but the Parliament, through its Equal Opportunities Committee, must monitor it. In addition, the commissioner will monitor it and report on it to the Parliament.

We give an undertaking to consult fully the organisations that Michael Matheson mentioned when we determine the code of practice, to ensure that any unintended consequences of our amendments for those organisations are not followed through. We will ensure that disabled people have appropriate access under the bill. I hope that members will support the Executive's amendments and reject those of Lord James Douglas-Hamilton.

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 12 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 67, Against 42, Abstentions 0.

Amendment 12 agreed to.

Amendment 56 moved—[Lord James Douglas-Hamilton].

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 56 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 42, Against 64, Abstentions 0.

Amendment 56 disagreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

We move to group 8. Conscious that the clock stops at 16:21, I ask members to make their contributions tight, as I want to get in a debate on group 10.

Amendment 57 is grouped with amendments 15, 16 and 19.

James (Conservative, Lothians)

Amendment 57 deals with potential extra costs. It would ensure that

"any fee charged by the authority for information provided other than in writing, by reason of the applicant's disability, does not exceed the fee which would be charged for the same information in writing."

The amendment was lodged with the full support of RNIB Scotland and other disability charities with an interest in the subject.

The amendment would not affect any of the bill's charging provisions. Whether and when authorities levy charges would be unaffected—the amendment seeks to prevent the extra costs that might be incurred in providing information in an alternative format or means from being passed on to the disabled applicant.

The principles of fairness and equity are at stake. Disabled persons may be charged the same price for information as non-disabled persons, but they should not be asked for more funds merely to access the same information. Amendment 57 would safeguard the interests of the disabled if the bill proceeds.

Amendment 15, which the minister lodged, seeks to remove an amendment that the Justice 1 Committee unanimously agreed to. So that the Parliament understands exactly what amendment 15 will do, I will read out the words that it seeks to delete:

"if the applicant expresses such a preference on grounds of disability and the preference is reasonable in relation to that disability, the authority must give effect to that preference."

The minister are substituting the right of a disabled applicant to express a preference and to have it acted on with a reference to the Disability Discrimination Act 1995. In other words, instead of having a positive obligation imposed on them by the bill, local authorities will merely be reminded that they should not discriminate. My point is that, if the bill goes through, it must deal with the rights of the disabled positively.

The difficulty with amendment 19 is that, again, it reminds authorities that they must not discriminate against the disabled, which they are not allowed to do in any case. We are seeking to provide the disabled with the same right of access to information as everyone else has—no more and no less. That means not only that they should not be discriminated against but that public authorities should act positively when a severely disabled person expresses a preference. The Justice 1 Committee wanted to go further than the Minister for Justice did in giving the disabled equal access to information. In our view, that will require a thoroughly positive approach. In committee, the minister argued strongly against amendments to that effect, but not one member was prepared to support his view.

Within the framework of the bill as a whole, the Executive's approach is not sufficient. I will move amendment 57 and press it to a vote. We cannot surrender our responsibility as parliamentarians to ensure equal freedom of information for Scotland's disabled people by merely saying, "Look at the Disability Discrimination Act." Anti-discrimination legislation is reserved to the United Kingdom Parliament, but responsibility for implementing consultative steering group principles falls to the Scottish Parliament. The fourth CSG principle is that:

"the Scottish Parliament in its operation and its appointments should recognise the need to promote equal opportunities for all."

This afternoon, I ask the Parliament to do precisely that.

I move amendment 57.

Richard Simpson (Labour, Ochil)

As Lord James rightly said, amendment 15 reverses an amendment that was agreed to by the Justice 1 Committee at stage 2. We fully appreciate the priority that the committee gave to disability issues. We absolutely agree—as I indicated in an intervention during the debate on an earlier section—that it is vital that the FOI regime that the bill will establish is equally accessible to all.

The Executive's amendments 15, 16 and 19 should not be regarded as a backward step—they are certainly not intended as such. The provision of information is the principle at the heart of the bill. Amendment 15 will ensure that information is provided in the format sought by a disabled applicant, except in the most extreme and unlikely circumstances. The rights of the applicant are afforded top priority throughout the bill—that has been acknowledged and welcomed throughout the bill's development. It has been suggested that our amendments would give disabled people a lesser right to information. That is simply not the case. Disabled applicants will, in practice, receive information in the format in which they need it.

However, it is not right that the circumstances of the authority should be afforded no consideration whatever. It is entirely correct that the reasonableness test should be applied and that all circumstances should be taken into account. Otherwise, an authority would have no room even to suggest that the information be provided in another format that might be equally acceptable to the applicant and easier for the authority to provide.

I understand that there are concerns about amendment 15, but I assure members again that the amendment should not be regarded as a backward step. It is important to acknowledge the significant difference between the legal duties imposed in legislation and what will happen when the FOI regime is up and running. What will happen in practice is what is important.

I assure members that amendment 15 will ensure that, as a matter of practice, disabled applicants are provided with information in the format that they prefer, except in exceptional and extreme circumstances. The bill begins from the principle that information should be made available; that will remain the starting point under amendment 15. As the official code of practice on the application of the Disability Discrimination Act 1995 makes clear, an authority will have to have very good reason for not making a reasonable adjustment.

George Reid (Scottish National Party, Mid Scotland and Fife)

I am sorry, Dr Simpson, but there are three and half groups of amendments still to discuss and we have to get through them by 16:21. If we continue with long speeches, some groups will have to be taken without any discussion whatever. I am anxious in particular that there should be some discussion on group 10.

Richard Simpson (Labour, Ochil)

I ask for some latitude, because the issue is core to the bill.

George Reid (Scottish National Party, Mid Scotland and Fife)

Of course. You may have a minute and a half, minister.

Richard Simpson (Labour, Ochil)

The issue comes down not just to the Disability Discrimination Act 1995 and its code of practice, but to the information commissioner. If an applicant is any way dissatisfied with the response that they receive from the provider of information, they can ask the commissioner to instruct the provider to provide the information in the form that they seek. The commissioner will also be able to suggest alternatives if they are available and if they are suitable and satisfactory to the applicant in terms of their disability. Under amendment 57, that cannot be suggested—the matter is left to the disabled person and no reference is made to equally acceptable alternatives.

As I said, a distinction must be drawn between the legal duties in the bill and how the regime operates in practice. We will engage with the range of bodies that Michael Matheson and others have referred to and that have been involved in discussions on the amendments. We will ensure that the guidance delivers what we all want as parliamentarians, which is to ensure the equal right of access for all disabled people and an equal ability to obtain the benefit of the bill.

Members should agree to amendment 19 because it clarifies the situation, and reject amendment 57. If members seek further points of reassurance, my colleague Jim Wallace will respond later. Although he is not summing up formally, we believe that it is important to put such points on the record.

George Reid (Scottish National Party, Mid Scotland and Fife)

In the interests of time, I hope that other members will forgo their right to speak.

James (Conservative, Lothians)

I make the point that issues relating to disability are so important that the Parliament should find time to discuss them. The debate should not be curtailed and our procedures should be reconsidered if it is.

George Reid (Scottish National Party, Mid Scotland and Fife)

I have no leeway to work outside the terms of the timetabling motion.

James (Conservative, Lothians)

It would be grossly unfair and unjust if a disabled person had to pay more for information purely because their disability meant that they could not receive information in the same way as others could. It is imperative that their rights are safeguarded and that the same information is available to them at the same cost as it would be to a non-disabled person. For that reason, I strongly urge members to agree to amendment 57 and to reject Executive amendments 15, 16 and 19.

Jim Wallace (Liberal Democrat, Orkney Islands)

Does Lord James accept that amendment 19 provides the clarification that he seeks? The reference to the Disability Discrimination Act 1995 provides that the extra costs cannot be passed on to an applicant. That will be clear in the bill and in the guidance—in many respects, the issue will be more transparent than it would be were amendment 57 agreed to.

James (Conservative, Lothians)

The minister argued strongly in committee against including any such provisions in the bill, because he wanted them all to be included in the guidance. However, the committee whole-heartedly rejected what he had to say. Amendment 16 expresses the matter negatively by saying that people are not allowed to discriminate against the disabled. We all know that; it is already provided for in legislation. I ask members to consider seriously my aim, which is to express the matter positively, so that disabled persons feel that they will be taken account of properly when they submit a request. That is a small thing to ask.

George Reid (Scottish National Party, Mid Scotland and Fife)

I regret the shortened time for debate, but I have to put the question. The question is, that amendment 57 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 47, Against 63, Abstentions 0.

Amendment 57 disagreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

Amendment 14 is in a group on its own.

Richard Simpson (Labour, Ochil)

Amendment 14 replaces an amendment that Michael Matheson lodged at stage 2. That amendment sought to ensure that any discretion that might be given to the commissioner could also be

"exercisable in response to an application made by a Scottish public authority."

During the stage 2 debate on that amendment, we argued that, under section 10 as it was originally drafted, any discretion granted to the commissioner could be exercised in response to such an application and on any other grounds that the commissioner deemed appropriate.

The Executive is keen to ensure clarity and to avoid any potential misconstruing of the effect of section 10(5)(b) in future. We have therefore lodged amendment 14 to replace Michael Matheson's text with a form of words that reflects what was intended and makes it clear that any discretion given or granted to the commissioner could be exercised at the request of the authority and where no such request is made.

I move amendment 14.

Michael Matheson (Scottish National Party, Central Scotland)

The minister is correct about the amendment that I lodged at stage 2. However, the text proposed by the Executive tidies up the issue and offers the clarity required in section 10.

Amendment 14 agreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 15 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

The division should take two minutes, but I will take it in 30 seconds. Is that agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

In that case, the division will take two minutes.

I am sorry. We have to take the vote again because some buttons were pressed early. I regret that. Everyone is now here and I am going to take the vote in one minute to save time. Is that agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 64, Against 46, Abstentions 0.

Amendment 15 agreed to.

Amendment 16 moved—[Mr Jim Wallace].

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 16 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

I am afraid that there will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 64, Against 47, Abstentions 0.

Amendment 16 agreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

I remind members that the knife falls at 16:21. There are still three and a bit groups to go.

George Reid (Scottish National Party, Mid Scotland and Fife)

Amendment 66 is grouped with amendments 17 and 18. If amendment 66 is agreed to, members will not be able to vote on amendment 17.

Michael Matheson (Scottish National Party, Central Scotland)

It is difficult to hear you, Presiding Officer.

George Reid (Scottish National Party, Mid Scotland and Fife)

I have asked for the volume of my microphone to be increased. We will do our best.

Michael Matheson (Scottish National Party, Central Scotland)

Amendment 66 would remove the provision by which a public authority may deem several requests to be part of a concerted campaign and refuse to answer them if the cost of answering all the requests would be more than £500. The aggregation of requests allows public bodies to ignore two or more requests if they perceive them to have come from an organised campaign and if answering the requests would cost more than the prescribed threshold figure.

Section 14 gives public authorities sufficient protection from vexatious or repeated requests. The campaigns exemption is open to abuse by public bodies, which could misinterpret several similar requests that originated from an organised campaign. Members should be minded that, in a democracy, the opinions of people who participate in a campaign do not count for less. Those people should continue to have a right to obtain information.

George Reid (Scottish National Party, Mid Scotland and Fife)

Please be brief.

Michael Matheson (Scottish National Party, Central Scotland)

The Justice 1 Committee was given an example of a campaign that Friends of the Earth Scotland ran. It wrote to public authorities throughout Scotland to request information. That campaign would fall foul of the system under the bill. I hope that members will recognise that the bill contains sufficient provisions to deal with vexatious or repeated requests.

I move amendment 66.

George Reid (Scottish National Party, Mid Scotland and Fife)

We have just two minutes left.

Jim Wallace (Liberal Democrat, Orkney Islands)

I will be as brief as I can be.

As I explained at stage 2, the Executive is firmly of the view that section 12(2) provides public authorities with necessary and practical protection against being overwhelmed by floods of requests. Amendments 17 and 18 would supplement that essential protection with provisions that require the general dissemination of information.

Members of the Justice 1 Committee will remember that I spoke about an authority in Canada that had to employ extra staff to meet requests that required the provision of 1.2 million pieces of paper. It is important to remember that the bill will apply to public authorities from the very large to the very small. Michael Matheson proposes to remove section 12(2). However, that could require an authority, even a small one, to provide information to thousands of applicants. There may be a more efficient way of providing that in keeping with the spirit of FOI.

Two concerns have been raised. The first is that section 12 is too widely drawn. Amendments 17 and 18 directly address that concern. Amendment 17 removes the words

"in pursuance of a campaign"

from the bill and replaces them with a much more specific provision. I draw members' attention to proposed section 12(2)(c). Any authority citing section 12(2) on the ground of applicants pursuing a campaign will be required to disseminate the information that is requested. Amendment 17 proposes to move a provision from the code to the bill.

Secondly, some people have suggested that authorities will be tempted to abuse the provision. We have taken specific steps to define more tightly the grounds on which section 12(2) can be cited. That removes directly the capacity for abuse. However, the Parliament must remember the role of the commissioner. Any authority that abuses the provision will be treated accordingly, as is the case with an abuse of any other provision.

George Reid (Scottish National Party, Mid Scotland and Fife)

I am afraid that the knife falls at that point. Does Mr Matheson wish to press amendment 66?

Michael Matheson (Scottish National Party, Central Scotland)

Yes.

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 66 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 48, Against 64, Abstentions 0.

Amendment 66 disagreed to.

Amendment 17 moved—[Mr Jim Wallace].

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 17 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division. I advise members that we are now in a run of 30-second divisions.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 93, Against 17, Abstentions 1.

Amendment 17 agreed to.

Amendment 18 moved—[Mr Jim Wallace]—and agreed to.

Amendment 19 moved—[Mr Jim Wallace].

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 19 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 64, Against 46, Abstentions 0.

Amendment 19 agreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 22 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 63, Against 45, Abstentions 0.

Amendment 22 agreed to.

Amendment 58 moved—[Lord James Douglas-Hamilton].

George Reid (Scottish National Party, Mid Scotland and Fife)

The question is, that amendment 58 be agreed to. Are we agreed?

George Reid (Scottish National Party, Mid Scotland and Fife)

There will be a division.

George Reid (Scottish National Party, Mid Scotland and Fife)

The result of the division is: For 46, Against 65, Abstentions 0.

Amendment 58 disagreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

We have reached the end of that timetabled block of amendments. I have taken on board what Dr Simpson, Lord James Douglas-Hamilton and other members have said about the debate being truncated. However, I should point out that I have to act within the terms of the timetabling motion that the chamber agreed to.

George Reid (Scottish National Party, Mid Scotland and Fife)

Amendment 24 stands in a group of its own.

Richard Simpson (Labour, Ochil)

There has been some speculation in the press about amendment 24, and I have welcomed the opportunity to debate its provisions on the radio on at least two occasions. In explaining the purpose behind the provision, I want to dispel the myths that appear to have been created.

The issue was first raised at stage 2 when Universities Scotland made us aware of its concern that the bill did not include sufficient safeguards against the premature disclosure of incomplete research that has not yet realised any commercial value. In fact, members of the Justice 1 Committee proposed amendments to address that concern, but they were withdrawn to allow the Executive to introduce amendment 24.

I assure members that amendment 24 does not create a broad loophole that would be open to abuse. The draftsmen deliberately settled on the specific wording, "a programme of research", to distinguish genuine academic research from other similar processes involving simple data collection or the analysis of such data. For example, a lot of advice to ministers includes facts and figures collected by civil servants. Amendment 24 would not cover that information or prevent it from being revealed.

We must not forget that the commissioner is unlikely to be sympathetic to an authority that argues that information represents research in progress when it does not in fact do so. It has been suggested that amendment 24 is unnecessary because the bill already includes safeguards against the disclosure of commercially sensitive information. However, as I have indicated, the amendment is not intended to catch commercially sensitive information. It provides the universities and other authorities that undertake research with a safeguard against disclosing speculative research for which the commercial value has not yet emerged. If Scottish universities were required to disclose such research before any commercial value was apparent, it is easy to predict that those bodies would be unable to compete effectively with institutions in other countries for research contracts. At present, Scotland does particularly well on research contracts, and I am sure that members of the Parliament would oppose anything that might damage that.

I consider amendment 24 to be both tightly defined and necessary, and I ask the Parliament to support it.

I move amendment 24.

Murray Tosh (Conservative, South of Scotland)

Members will appreciate that the time lost in debating the previous groups of amendments must be regained. We have 19 minutes left for four groups of amendments and I have received five requests to speak on this group alone. I ask members to keep their remarks very tight indeed so that we can get through all those who want to contribute. I call Robin Harper.

Robin Harper (Green, Lothians)

I have just one question for the minister. Research is frequently commissioned that might take up to five years to complete, that might involve a lot of data collection, and on which the Executive and the Parliament might rely for the development of legislation. Accessing that research before it is finished might often be extremely useful. Would amendment 24 prevent that from happening?

Murray Tosh (Conservative, South of Scotland)

The minister will pick up on that point when he winds up.

Donald Gorrie (Liberal Democrat, Central Scotland)

Ministers have made a serious attempt to answer the objections made by universities, but they are now getting counter-objections from environmental and other bodies, which try to get out of public authorities information relating to their sphere of interest. We must have an assurance from the Executive that the rules will analyse tightly the question of what constitutes "a programme of research" and will not allow people to hide behind a veil.

I support amendment 24. Like amendments 20 and 21, it is a serious attempt by the Executive to address points raised by the committee at stage 2, and so it is welcome.

Michael Matheson (Scottish National Party, Central Scotland)

There are serious concerns about amendment 24. I understand that, when the Freedom of Information Bill was introduced in England, the loophole was referred to as the MAFF exemption, because it was the Ministry of Agriculture, Fisheries and Food that pressed for such a provision to be included in the legislation.

I understand the concerns that the minister has expressed and the way in which the Executive has tried to address the issues. However, I would like the minister to comment on whether people who are carrying out genuine research that is not yet complete and who do not want to provide information to their competitors will be covered by commercial confidentiality exemptions. Preliminary information shared among researchers is also protected by intellectual property rights. Are not the concerns that the minister has expressed sufficiently covered by existing provisions?

I know that a number of organisations in Scotland believe that amendment 24 is a retrograde step, and that it will leave a significant loophole in the legislation. It will be interesting to hear whether the Deputy Minister for Justice thinks that the present provisions could address suitably the issues that have been raised, without having to create a potential loophole in the bill.

Mike Rumbles (Liberal Democrat, West Aberdeenshire and Kincardine)

A programme of research could take many years. No time scale is mentioned in amendment 24. The minister's point that one could appeal to the information commissioner is an important one, but will guidance be given to the commissioner, so that universities cannot say, "The research is taking place over many years. We are not going to release the information"? The information commissioner should receive guidance on that point.

Richard Simpson (Labour, Ochil)

I will try quickly to address those points. First, on the last point, a programme of research includes a one-off piece of finite research. It does not mean a programme as Mike Rumbles and I understand it; it is a programme as lawyers understand it, which is quite different. That is important.

Secondly, we must remember that the exemption will be subject to the public interest test and the prejudice test, and that its use can be scrutinised by the information commissioner, so there are safeguards to make absolutely sure that no one uses the exemption in an inappropriate way. If that starts to happen, clearly we will have to re-examine the matter, but we feel that the amendment has been drawn tightly enough to ensure that it will address the area that we wish it to address, which is the difficult area to which Michael Matheson alluded.

If the research is in the fully commercial area, then the commercial interest measures will apply, but the area that we are addressing is that in which the research is not yet registered for intellectual property rights. We are talking about research that is probably at an early stage and which is quite speculative. A lot of the research by people such as Sir David Lane in Dundee on genetics and its spin-offs falls into that category. If the information had to be revealed at an early stage, that could be damaging to the subsequent development of biotechnology companies, because it would allow competitors to get in.

We believe that we have drawn the amendment tightly enough, but we will look to the information commissioner to have regard to the Parliament's wish that the measures should not be protective in the way that Robin Harper alluded to. It must be absolutely clear that the exemption should not be used in that way.

Murray Tosh (Conservative, South of Scotland)

The question is, that amendment 24 be agreed to. Are we agreed?

Murray Tosh (Conservative, South of Scotland)

There will be a division.

Murray Tosh (Conservative, South of Scotland)

The result of the division is: For 74, Against 34, Abstentions 0.

Amendment 24 agreed to.

Murray Tosh (Conservative, South of Scotland)

Amendment 70 is in a group on its own.

Robert Brown (Liberal Democrat, Glasgow)

Amendment 70 takes us into the realm of the formulation of Scottish Administration policy. Under the bill, ministerial communications and background information, apart from statistical information, are to be exempt. Amendment 70 seeks to widen—beyond statistics and into facts—the range of information that the Scottish Executive would have to make available on request. A wider approach is taken in the Irish and Australian freedom of information regimes and, to a large extent, in the Scottish Executive's code of practice, which preceded the bill. The obligation under that code is to publish facts and the analyses of facts that Scottish ministers consider relevant.

It would be unfortunate if we restricted the area too narrowly. The matter is not only theoretical. A number of relevant issues have arisen in other countries and in Scotland in relation to, for example, the Maritime and Coastguard Agency, the Medicines Control Agency and MOT certificates. A number of factual matters might arise. It seems to me that there is no public policy reason why factual information, rather than the legal advice on which ministers rely, should not be in the public domain.

I gather that ministers are opposed to amendment 70, which is unfortunate. I seek assurances that the minister will take on board the strong viewpoint behind the amendment, which the Campaign for Freedom of Information and other such bodies take, that the provision should be widened. I ask the minister to give an assurance that the commissioner will have the power to consider the matter and that a generous interpretation of what constitutes a fact will be taken by the Executive—as a matter of policy—and in the publication schemes.

I move amendment 70.

Donald Gorrie (Liberal Democrat, Central Scotland)

I endorse everything that Robert Brown said.

Jim Wallace (Liberal Democrat, Orkney Islands)

I am grateful to my colleagues for their comments, particularly to Robert Brown for his explanation of the intent behind amendment 70. As he anticipated, I cannot support the amendment, because it is inappropriate. I do not want to dwell on the fact that the amendment is unfortunately framed. The adjective "purely" is unfortunate because information is either factual or not factual. I am advised that the expression might throw into confusion some of the other references in the bill to factual information. That makes amendment 70 less than satisfactory.

There are other reasons why I wish to persuade Robert Brown to withdraw his amendment. The bill adopts a clear and appropriate approach to determining whether factual information that has been—or is intended to be—used to provide an informed background to the formulation and development of Government policy should be disclosed. Such information can be withheld only if the public interest in withholding it outweighs the public interest in disclosing it. To address one of Robert Brown's points, the bill provides an effective review and appeals system whereby an independent commissioner will be able to determine whether information should be disclosed and will be able to order such disclosure. The commissioner will be very much involved.

As was noted at stage 2—I welcome the opportunity to repeat this to the Parliament—the section 2 public interest test tips the balance firmly in favour of disclosure. The calling out of factual background information in section 29 signals the importance that is attached to disclosure of that information. Considering the bill as a whole, I think that the complementary provisions in section 23, on publication schemes, require authorities to have regard to the public interest by routinely making available facts or analyses that underpin decisions and the reasons for decisions. Such provisions for publication schemes are found only in the bill and in the UK Freedom of Information Act 2000. They are strong provisions, not simply idle references. The provisions require authorities to have regard to making information available. Of course, the publication schemes require the approval of the commissioner.

Taken together, those provisions signal a clear expectation that facts that underpin decisions will be made public. There is a clear presumption in favour of disclosing material on which the Executive has acted, yet the bill provides a framework that recognises that it may not always be in the public interest to disclose that material. With regard to Ireland—

Murray Tosh (Conservative, South of Scotland)

Please be brief, minister. We are chasing the clock again.

Jim Wallace (Liberal Democrat, Orkney Islands)

In Ireland, the information becomes available only on publication and not when a decision is made. The exemption would not justify withholding information about the expected effects of policy—that would not be allowed. However, there may be circumstances in which to disclose information without any consideration even of the prejudice test could be damaging. I cited a case at stage 2 that involved a cancer cluster, in which contextualised disclosure of factual information after decisions had been made was essential. Amendment 70 would require all facts relating to such cases to lose the exemption for disclosure at a stroke, which would deprive the Executive of the option of putting that information into the public domain in a sensitised way. Although I understand where Robert Brown is coming from, there are many provisions in the bill that encourage the disclosure of factual information.

Murray Tosh (Conservative, South of Scotland)

I invite Robert Brown to respond and to press or withdraw amendment 70.

Robert Brown (Liberal Democrat, Glasgow)

I do not accept the minister's bureaucratic bits, but I accept the main intention behind what he says. In the circumstances, I seek to withdraw the amendment.

Amendment 70, by agreement, withdrawn.

Murray Tosh (Conservative, South of Scotland)

Amendment 5 is in a group on its own.

Michael Matheson (Scottish National Party, Central Scotland)

The purpose of amendment 5 is to prevent public authorities from claiming commercial confidentiality when passing information between each other. It may seem odd to talk about public authorities trying to dress things up in commercial confidentiality, but increasingly frequently, a public authority will ask another to tender for a specific service.

When the Scottish Prison Service put social work and education for prisoners out to tender and public bodies tendered for the contract, commercial confidentiality prevented the release of information. I lodged a parliamentary question asking for the number of social workers at HMP Glenochil and at HM young offenders institution in Polmont, but the information was refused because the contracts specified outputs and not inputs, which are characterised by commercial confidentiality. It is clearly a matter of public interest to know what is happening in such public institutions, given that often—if not in all cases—the social work and education facilities are being provided by other public agencies.

In another recent case, Glasgow City Council was unable to provide information relating to the national asylum support service on the basis that it was commercially confidential. I do not believe that one public authority that is working with another should be able to dress matters up in commercial confidentiality. Amendment 5 seeks to ensure that that does not happen.

I move amendment 5.

Murray Tosh (Conservative, South of Scotland)

I am sorry, but I have to ask the minister for a very brief response.

Richard Simpson (Labour, Ochil)

Amendment 5 seeks to disallow any claim to the commercial exemption if the information has been passed between two or more public authorities. That is simply absurd. Commercially sensitive information does not cease to be commercially sensitive because it has been passed between public authorities. For the most part, the exemption is content based, which means that the information can be withheld only if its disclosure would cause substantial prejudice and if disclosure would be contrary to the public interest. It is the information that is sensitive; it has nothing to do with the holder.

Under amendment 5, if sensitive commercial information regarding inward investment opportunities was passed from the local enterprise company to the local authority, it could not be withheld, which could jeopardise the creation of jobs. Also under amendment 5, if sensitive commercial information regarding a rescue package for a business that was under threat of closure was passed from Scottish Enterprise to the Scottish Executive, it could not be withheld and that could jeopardise the preservation of jobs and the financial position of employees.

Amendment 5 is nonsense and I urge that it be rejected.

Murray Tosh (Conservative, South of Scotland)

I ask Michael Matheson for the briefest of responses.

Michael Matheson (Scottish National Party, Central Scotland)

I press the amendment.

Murray Tosh (Conservative, South of Scotland)

The question is, that amendment 5 be agreed to. Are we agreed?

Murray Tosh (Conservative, South of Scotland)

There will be a division.

Murray Tosh (Conservative, South of Scotland)

The result of the division is: For 32, Against 78, Abstentions 0.

Amendment 5 disagreed to.

Murray Tosh (Conservative, South of Scotland)

Amendment 71 is in the name of Michael Matheson. I am afraid that the clock has beaten us, so I ask Mr Matheson only whether he is moving amendment 71.

Michael Matheson (Scottish National Party, Central Scotland)

I intend to move amendment 71. However, I want to make a point for the record. We are debating the Freedom of Information (Scotland) Bill, but time seems to be preventing us from having a proper debate. It is clear that we must urgently review the rules in standing orders for dealing with stage 3 debates.

I move amendment 71.

Murray Tosh (Conservative, South of Scotland)

That point has already been accepted and will be considered. However, this afternoon, we are bound by the timetabling motion that was agreed.

The question is, that amendment 71 be agreed to. Are we agreed?

Murray Tosh (Conservative, South of Scotland)

There will be a division.

Murray Tosh (Conservative, South of Scotland)

And lo, there was light. We will have the division.

Murray Tosh (Conservative, South of Scotland)

The result of the division is: For 31, Against 77, Abstentions 0.

Amendment 71 disagreed to.

Murray Tosh (Conservative, South of Scotland)

Amendment 25 is in a group on its own.

Richard Simpson (Labour, Ochil)

Amendment 25 is a technical amendment, which seeks to put beyond doubt that all documents that are created by a court or staff during a court case are covered by the exception. That would include documents created for the purposes of the proceedings, as well as documents created in the course of the proceedings but not necessarily for the purposes of those proceedings. That would include incidental notes made by judges and staff, which would be exempt from disclosure, unless to disclose them would be in the public interest. That has always been the policy intention. I recommend that this technical amendment be agreed to.

I move amendment 25.

Amendment 25 agreed to.

Murray Tosh (Conservative, South of Scotland)

Amendment 26 is also grouped on its own.

Jim Wallace (Liberal Democrat, Orkney Islands)

It is clear from many of today's debates that some members are concerned that ministers—not the current ministers, but ministers at some time in the distant future—might be reluctant to use powers under sections 4 and 5 to extend the bill's coverage. There was much discussion about that during the debates on some of the earlier amendments in particular.

In its stage 1 report, the Justice 1 Committee suggested that the Scottish information commissioner could be given some role in the exercise of such powers. Amendment 26 seeks to allow that. It will provide that the commissioner, whenever he or she considers it appropriate, may make formal recommendations to the Scottish ministers as to which additional bodies should be covered by freedom of information. The commissioner having made such a recommendation, I am sure that Parliament would not be slow to back it up.

I move amendment 26.

Amendment 26 agreed to.

Murray Tosh (Conservative, South of Scotland)

Amendment 27 is in a group on its own.

Jim Wallace (Liberal Democrat, Orkney Islands)

There was detailed discussion on section 45, a somewhat complicated section, at stage 2. In short, and reflecting the fact that the commissioner can be expected—almost by definition—to come into contact with a great deal of very sensitive information, section 45 sets out the circumstances under which the information commissioner may decide to disclose information in his or her possession.

I undertook at stage 2 to lodge an amendment at this stage so that authorities could not attach a condition of confidentiality to information provided to the commissioner solely to ensure that the commissioner could not disclose it. Amendment 27, which is a rather technical amendment, would frustrate any such ploy, and I therefore ask the Parliament to support it.

I move amendment 27.

Amendment 27 agreed to.

Murray Tosh (Conservative, South of Scotland)

Amendment 72 is in a group on its own.

Donald Gorrie (Liberal Democrat, Central Scotland)

Amendment 72 aims to draw attention to the question of resources, which are essential to the implementation of the bill. The bill addresses to an extent the question of the front-line resources of the people who are actually answering the questions, but it was emphasised to me during discussions with archivists that many public organisations' archives are in total disarray.

I can understand why that happens. Like many colleagues, I have served on councils where there is a choice between paying a new archivist and giving him or her improved facilities or paying a new teacher and giving him or her improved facilities. In such cases, councils will vote for the teacher. In many bodies, therefore, the archives have been the poor relation in the whole enterprise.

This excellent bill will make great demands on archives, to which many public bodies will not be able to respond. I am therefore suggesting that the Scottish information commissioner could draw the Parliament's attention to the deficiencies of a particular body's archives and get something done. The Executive could enable the authorities in question to spend more money on their archives.

There is, I understand, an argument that that would bring the commissioner into territory outwith commissionerland. However, we have just passed another Executive amendment, which says:

"The Commissioner may from time to time make proposals to the Scottish Ministers".

I do not see why my amendment, which says:

"The Commissioner may from time to time lay before the Parliament a report",

is not valid.

I think that the Executive's argument about this is even weaker than some of the Executive's arguments tend to be anyway. The Executive, whether it agrees with my amendment or not, must give real consideration to the question of resources for archives. To talk about having an archives bill in five years' time is just not good enough. There has to be a real guarantee of proper resources, and I think that my involving the commissioner in that is the way to bring that about.

I move amendment 72.

Richard Simpson (Labour, Ochil)

We appreciate the motive behind amendment 72 but consider it unnecessary and, to an extent, inappropriate. Section 46 already provides the commissioner with broad general powers to report annually on the exercise of the functions that are conferred on him or her, and from time to time to submit other reports with respect to those functions, as the commissioner thinks fit. The commissioner would be able to report on the matters that are referred to in the amendment if the commissioner regarded that as appropriate—that is for the commissioner to decide. From the experience with other information commissioners, we can anticipate that the Scottish information commissioner will comment on a broad range of matters. For that reason, we regard the amendment as unnecessary.

It would be inappropriate to impose on the commissioner a formal duty to review and assess whether an authority's resources are adequate for it to maintain its archives and to discharge its functions under the act. The commissioner's role is to promote and enforce the act. I would not want extraneous functions to be imposed that could detract from the commissioner's carrying out freedom of information functions. That said, we can expect the commissioner to report on a broad range of matters. At an earlier stage, we listened when Michael Matheson raised an issue similar to the point that Donald Gorrie is making about the importance of local authorities' maintaining archives. That is a separate issue, to which the Parliament may wish to return.

If the commissioner has concerns about how authorities are coping with their duties under the FOI regime, I have no doubt that he or she will make those known. The Parliament will be able to seek a view from the commissioner if it has concerns about the issue that Donald Gorrie raises or about any other issue. The key point is that amendment 72 would require the commissioner to act as an auditor, which is very different from his or her function in other respects.

On the basis of the explanation and reassurance that I have given, and given the opportunity for future debate on the issue of archives, I ask Donald Gorrie to withdraw amendment 72.

Donald Gorrie (Liberal Democrat, Central Scotland)

I am not too impressed by the Executive's response to my amendment. However, because on a number of issues the Executive has conceded what the Justice 1 Committee wanted, I will concede on this one.

Amendment 72, by agreement, withdrawn.

Murray Tosh (Conservative, South of Scotland)

The question is, that amendment 28 be agreed to. Are we agreed?

Murray Tosh (Conservative, South of Scotland)

There will be a division.

Murray Tosh (Conservative, South of Scotland)

The result of the division is: For 62, Against 47, Abstentions 0.

Amendment 28 agreed to.

Murray Tosh (Conservative, South of Scotland)

Amendment 29 is grouped with amendments 30, 7 and 8.

Jim Wallace (Liberal Democrat, Orkney Islands)

Amendments 29 and 30 fulfil a commitment that I gave at stage 2 to import from "An Open Scotland" the policy that a ministerial certificate would be used only in relation to information of exceptional sensitivity. Making that adjustment has meant that the drafting of section 52(2) has been amended to emphasise—within the confines of the terms of the Scotland Act 1998—that any decision by the First Minister to issue a certificate to the commissioner would be taken on the basis of consultation with all the members of the Executive. Members of the Parliament will recall that the policy intention was that such a decision should be a collective decision of the Cabinet, but the terms of the Scotland Act 1998 specifically require the First Minister to make the decision after consultation.

Michael Matheson will no doubt argue for a shortening of the relevant period; indeed, he will argue for section 52 to be removed altogether. I will address those issues. Amendment 7 would change the number of working days that the First Minister has to lay a copy of a section 52 certificate before the Parliament and to advise the original applicant of the reasons for the decision not to accept the commissioner's opinion. At stage 2, in response to members' concerns about the time scale, we lodged an amendment that required the specified actions to be completed not later than the 10th working day, which the Justice 1 Committee accepted.

Members will understand that we are not dealing with a significant point of principle. It is simply not practical to require both actions—not just the laying of the certificate before the Parliament—to be completed within a period of five working days. Although a period of 10 working days represents a stringent requirement, it allows some flexibility to take account of any unforeseen circumstances—fog in Stockholm, for example—that might prevent the First Minister from signing off a letter to the original applicant and laying the certificate before the Parliament.

An amendment that was similar to amendment 8, which would delete section 52, was considered at some length at stage 2. I do not need to speak at length about why I believe—some members of the Justice 1 Committee did too—that it was appropriate to retain in the bill a limited override provision, which would be used in exceptional circumstances. The provision is limited in its scope, cannot be invoked by an individual Scottish minister and does not operate to prevent the commissioner from considering an appeal. Amendments 29 and 30 make clear on the face of the bill our long-standing policy that a section 52 certificate would be used only if the information that was requested was of exceptional sensitivity.

The provision would not undermine or weaken the bill. I do not hear it said that the relevant Irish or New Zealand acts are fatally flawed by inclusion of certificate provisions of a similar nature. As I explained at stage 2, a section 52 certificate can only be issued when there are reasonable grounds to do so and a certificate could be subject to judicial review and could be quashed, if a court was satisfied that there were no reasonable grounds for issuing the certificate. The Parliament would also have the opportunity to scrutinise the use of section 52 powers. The provision is a necessary and appropriate provision, but it is limited. It is similar to provisions that are found in comparable regimes and is part and parcel of the checks and balances that are in the freedom of information scheme. I ask members to reject amendments 7 and 8 and to support amendments 29 and 30.

I move amendment 29.

Michael Matheson (Scottish National Party, Central Scotland)

I welcome the amendments that the Executive has lodged, because they represent a welcome step in the direction of limiting the way in which the section 52 certificate could be used. It will now only be possible to use such a certificate with issues that are considered to be of exceptional sensitivity.

On amendment 8, I do not believe that a ministerial veto is necessary. The bill contains a range of exemptions and safeguards that apply to a variety of information, whether that information is secret, commercially sensitive, in the public interest or represents a class exemption. All those safeguards will ensure that information that should not be released to the public is not released. Therefore, I can see no reason for having such a backstop measure—the belt-and-braces approach that will allow ministers to veto a decision by the information commissioner to release information. That is what the ministerial veto will allow.

The minister has said much today about the fact that the information commissioner has an important role to play in engendering an open culture and ensuring that the legislation works effectively. However, the ministerial veto will allow the First Minister to overrule the information commissioner when he has directed that information should be made available. There is no justification for such provision to be made in the legislation. If anything, the ministerial veto acts in favour of non-disclosure as opposed to acting in favour of disclosure.

If ministers are intent—as it appears that they are—on maintaining the ministerial veto, it is unacceptable for them to allow themselves 10 working days before laying the certificate before Parliament. It is clear that ministers do not work at the weekend, but 10 working days is equivalent to two weeks. If ministers have consulted their Cabinet colleagues and have considered the matter seriously, surely it would be a perfectly simple matter for them to lay the certificate before the Parliament within five working days. I do not accept the minister's arguments about why there is a need for a fortnight's wait.

The only reason that ministers might want to delay laying the certificate would be in order to take the political sting out of an issue. The sooner the certificate is before the Parliament, the earlier members will be allowed to scrutinise exactly why the First Minister has acted in such a way. That is why the time scale should be reduced from 10 working days to five working days.

Murray Tosh (Conservative, South of Scotland)

I call Duncan McNeil. [Interruption.] Duncan McNeil, your light is on.

Duncan McNeil (Labour, Greenock and Inverclyde)

There is nobody in, Presiding Officer.

Murray Tosh (Conservative, South of Scotland)

That confirms long-held suspicions.

Donald Gorrie (Liberal Democrat, Central Scotland)

I welcome as a significant step forward the Executive's amendment 30, which says that the veto can apply only to information of exceptional sensitivity. Many members would like there to be no veto at all, but I accept that such a veto is a comfort blanket for some senior politicians and senior civil servants. If there were no veto, there would be widespread heart attacks in those ranks that would cause the national health service a lot of undesirable expenditure.

The veto must be reported to Parliament, although I accept that one can argue about whether that should be done within 10 days or five days. From past experience, I am sure that members would get torn into the matter and that the First Minister would have to have a good case in order to withstand that scrutiny. As the information must be of exceptional sensitivity before the First Minister and the Cabinet can use the veto, the Executive has gone a long way towards meeting our concerns. I welcome that degree of flexibility from the Executive.

Christine Grahame (Scottish National Party, South of Scotland)

I will make a brief contribution to the debate on this group of amendments. There was a strenuous debate in the Justice 1 Committee about the ministerial veto and I note that the minister has moved on the matter, albeit not far enough for some of us. For the minister to refer to the veto as an override—as he also did in the Justice 1 Committee—was a bit of sleight of language. After all, it is a veto.

I note what the minister said about the Cabinet's collective decision on such matters. However, the problem for the chamber is that everyone in the Cabinet owes their position to the First Minister. We wonder how strong collective decision making can be in those circumstances.

At the end of the day, if the First Minister's veto is used, it will be up to Parliament to call the Executive to account. That is a matter for the justice committees. I hope that the Parliament will refer such matters to one of the justice committees, with a view to having a full debate in the chamber thereafter. The Parliament should exercise its powers over the Executive in such matters.

Brian Fitzpatrick (Labour, Strathkelvin and Bearsden)

Christine Grahame disclosed a rather unusual view, both of the benefits for members of collective responsibility and of the pressures that are exerted on individual ministers in relation to the exercise of such powers, given their collective obligations to their Cabinet colleagues. She betrays yet again a fundamental misunderstanding of the Executive's intentions in relation to the ministerial veto. It is welcome that ministers have to satisfy themselves about the circumstances in which those powers will be applied. It is also welcome that ministers must then report to, and be prepared to stand before, the Parliament. Over the course of the past few months and years, we have not seen an unwillingness on the part of members to interrogate those decisions. Given that history, I do not think that we need to worry too much about the future.

Murray Tosh (Conservative, South of Scotland)

I call the minister to wind up.

Jim Wallace (Liberal Democrat, Orkney Islands)

Let me remind colleagues that the circumstances under which the ministerial override could be used—they are set out in section 52(1)(b)—are in themselves somewhat limited. For example, section 29 relates to the formulation of Scottish Administration policy and has already been debated. Section 31(1) relates to information for the purpose of safeguarding national security. The ministerial override could also be used for information relating to our international relations and communications with the sovereign. The circumstances are very limited indeed.

It is also important to remember that the ministerial override is part of a bill that contains a substantial prejudice test. In all other circumstances, the bill allows the commissioner to order disclosure with the penalties and legal requirements that follow from that.

To pick up Brian Fitzpatrick's point about collective responsibility, the idea that if the First Minister decided to use the override, all of us ministers would just touch our forelocks and agree with him betrays little understanding of the discussions that can go on inside government. In New Zealand, the initial experience was that, when individual ministers could exercise the override, they did so on a number of occasions—so much so that it was found necessary to go back to Parliament and amend the law to make the decision a collective one. Since that happened in, I think, 1987, the collective override has not been used in New Zealand.

Dennis Canavan (Independent, Falkirk West)

The commissioner is supposed to be an independent person, but Scottish Executive ministers are not renowned for their independence. Why cannot the commissioner be given the final say on whether the information ought to be released?

Jim Wallace (Liberal Democrat, Orkney Islands)

The reason is that in a very limited number of cases, such as in issues of national security, ministers might take the view that the information was of such exceptional sensitivity that it ought not to be disclosed. A certificate could be issued only if such a view was taken.

As Brian Fitzpatrick rightly pointed out, the certificate would need to be laid before the Parliament and could be a subject for debate. It would be for the Parliament to decide whether it wanted to remit the issue to one of the justice committees—although, having heard what Michael Matheson said, doing that might result in a longer deliberation in the committee, which could take the heat out of the debate even more. However, that is a matter for Parliament.

On the timing, I emphasise that we want to give some real substance to the provisions that allow ministers to address the issue about whether the information is of exceptional sensitivity. Decisions on such matters should not be taken lightly. I believe that 10 working days would allow proper consideration of the issues involved. The issues would obviously be matters of the highest importance. I do not believe for one moment that the Parliament would not make ministers accountable for the decision that they took.

I urge the Parliament to support the Executive amendments and to reject the amendments in the name of Michael Matheson.

Amendment 29 agreed to.

Amendment 30 moved—[Mr Jim Wallace]—and agreed to.

Amendment 7 moved—[Michael Matheson].

Murray Tosh (Conservative, South of Scotland)

The question is, that amendment 7 be agreed to. Are we agreed?

Murray Tosh (Conservative, South of Scotland)

There will be a division.

Murray Tosh (Conservative, South of Scotland)

The result of the division is: For 31, Against 78, Abstentions 0.

Amendment 7 disagreed to.

Amendment 8 moved—[Michael Matheson].

Murray Tosh (Conservative, South of Scotland)

The question is, that amendment 8 be agreed to. Are we agreed?

Murray Tosh (Conservative, South of Scotland)

There will be a division.

Murray Tosh (Conservative, South of Scotland)

The result of the division is: For 32, Against 78, Abstentions 0.

Amendment 8 disagreed to.