09 March 2001
The Scottish Executive's Freedom of Information Bill, unveiled by Justice Minister Jim Wallace on March 1, is significantly more generous than the bill pushed through Westminster by Home Secretary Jack Straw last year.
The executive will only be able to withhold information if disclosure would cause `substantial prejudice' to the workings of government. Whitehall's test is simple `prejudice' and we will have to wait until Straw's bill is tested to discover if this means anything more than `makes things a bit awkward'. Under Wallace's regime, this test is also balanced against the `public interest'; there is no such safeguard in Straw's.
The Campaign for Freedom of Information says the substantial prejudice test is an important step forward which would `require Scottish public bodies to operate more openly than similar bodies elsewhere in the UK'.
Almost as important are the powers of the information commissioner who will police the bill. The Whitehall commissioner, Elizabeth France, can only `recommend' disclosure; Edinburgh's commissioner will be able to overrule ministers.
But only up to a point. It seems Wallace and his colleagues bottled it at the last minute and inserted a clause allowing the first minister to veto disclosure with approval from the full Cabinet. Wallace says this would happen only in `very rare circumstances' and would be `a pretty big political event'. In Whitehall, disclosure can be vetoed by a single minister without reference to Cabinet. But, of course, it is precisely Wallace's `rare circumstances' that we really want to know about.
Scotland's commissioner will be appointed by Parliament rather than by ministers an important safeguard. Elizabeth France is no patsy, but under UK law she could be succeeded by somebody deemed more `reliable'. In Ireland, civil servants say the appointment of a powerful, independent commissioner has helped to break the secretive culture that used to grip the Dublin government.
As in Whitehall, advice given by Scottish civil servants to ministers will remain confidential. For open government campaigners, this is a serious flaw. There is no more secretive part of government than the nexus between minister and civil servant, as any judge who has chaired a Whitehall inquiry knows.
But ministers north and south of the border are adamant that publishing civil service advice will make officials less frank. In private, many civil servants say it will expose how often ministers wrongly reject their advice.
Controversially, Wallace also decided to follow Straw by exempting whole categories of information from the bill, including `national security', `relations with the European Union', and information given to the executive `in confidence'.
Again, Wallace says such exclusions would be `a rare event' and would require Cabinet approval. The legislation actually says the first minister must `consult' his colleagues and, since Cabinet business is also exempt, we will never know the form these `consultations' took.
Interestingly, opposition to the bill has been muted. The Scottish National Party questioned whether it would make much difference, while Scottish Tories seized on the possibility of conflict between Edinburgh and Whitehall. This is a question that concerns many officials and to which the executive has failed to provide an answer.
Information on non-devolved matters such as tax, social security and defence will presumably remain covered by Straw's regime even when held in Scotland. But what will happen, for example, when information is passed from the Department of Social Security in Whitehall for use in the Scottish health service? A memo from a Whitehall official to a colleague in Edinburgh may be covered by UK legislation and kept secret, but the Scot's reply may be deemed releasable.
Bizarrely, the Scotland Office, which is supposed to handle relations between the two governments, will remain under Straw's regime, despite its day-to-day involvement in Scottish government.
These conflicts could nudge Whitehall towards a more liberal interpretation of its own rules, but it could work the other way. There is also a danger that conflicts may deter Whitehall officials from keeping colleagues in Edinburgh fully in the loop.
One senior Holyrood official said: `As with devolution itself, no one knows how this will work. We will be flying by the seat of our pants. In most cases, common sense will prevail. Where things are really difficult, it could be for the courts to decide.'
Another official said: `No FOI regime is ever going to be perfect. No business can work in total openness. Government is no different. What is important is whether the bill will foster a culture of openness in government. There are already signs that this is happening in the UK with, for example, the handling of the foot and mouth epidemic.'
Wallace's bill will give Scots the most open government in the UK. But it still leaves plenty of scope for a future, less benign executive one presided over by politicians less open than Jim Wallace to close up the shop.
PFmar2001
