Category: Scots Law

Transparency in the reporting of FOI responses?

Today I noticed a line in a BBC News report which I see fairly frequently in news reports that have come from FOI requests and it made me think about whether the reporting is fair on the public authorities concerned.

In this instance the Liberal Democrats had requested information from local councils in Scotland concerning racist incidents recoded at schools. The figures used in the report were based on the responses of three-quarters of the local authorities in Scotland. The BBC report included the wording:

“The party submitted Freedom of Information (FOI) requests to local councils and received responses from three-quarters of them.”

I don’t consider such wording to be fair to the quarter of local authorities who, by implication, haven’t responded. It implies that a quarter of local authorities in Scotland have failed to respond, and as such are failing to comply with the law.  Section 10(1) of the Freedom of Information (Scotland) Act 2002 requires public authorities to respond to requests promptly, and in any even no later than the twentieth working day following receipt. The only exception is where the request (or a similar one) from the same requester has been judged as vexatious and it would be unreasonable for the authority to issue another notice. In such cases the public authority is not obliged to issue a further refusal notice.

Sometimes public authorities fail to comply with section 10(1) for a variety of reasons. However, I find it hard to believe that a quarter of Scotland’s local authorities failed to do so in respect of the same request (although some may have).  That leaves us with a number of explanations as to why there are only figures for 3/4 Scottish local authorities in this case.

1) The Lib Dems released the figures before the 20 working days were up. Some public authorities (including some local authorities) are very good at responding in a time frame much quicker than permitted by law (personally the quickest I ever received a full substantive response from a local authority was one working day – and it included the information I’d requested in full). This seems unlikely though.

2) That some of the local authorities refused the request. This could have been for a variety of reasons: they didn’t hold the information requested, it would have exceeded the appropriate limit or it applied one of the exemptions to the information permitted by the Act).

The second reason above seems the most likely and this is very different from the implication given by the BBC in its coverage of the story. There would have been a response because FOISA requires public authorities to issue refusal notices in all the cases described in number 2.  The response may not have included any disclosure of information, but that’s not the same as receiving no response.

I said at the outset of this post that this phrase is one that is heard or seen often in the reporting of stories which have originated out of FOI. It begs the question: Is this fair reporting? I would have to say that it would appear not to be; implying authorities are not complying with the law without providing the evidence to back it up isn’t very fair. Who is to blame though? The news outlet making the report or the requestor? In some cases the two will be the same.

So should reporting of the results of FOI requests be more transparent?

A quick defence of legal aid

The debates around legal aid in Scotland earlier this year and in England over the last year have been characterised by a number of clear misconceptions by the public at large.  There is a view that legal aid exists only to make ‘lawyers rich’ and that the vast majority of those receiving legal aid are in some way ‘undeserving’.  These views are of considerable concern as the simply enable Governments in Edinburgh and London to press ahead with legal aid ‘reforms’ that will substantially damage the country.

Legal aid seems to get lumped in with job-seekers allowance, housing benefit, council tax benefit and such like (I have even, on more than one occasion, seen comparisons drawn between legal aid and the NHS); these comparisons are illogical and ignore fundamental aspects of legal aid which set it apart from any other government spending.

Equality before the law is fundamental to ensuring access to justice.  The ability of all (and not just the rich) to access the legal system is of fundamental constitutional importance.  The ability of individuals to defend themselves against the power of the state (whether in civil or criminal proceedings) and to challenge the state through Judicial Review are essential to our constitution.  Without this ability we are not a liberal democracy.  The issue of access to the law isn’t only confined to making it possible to bring or defend a claim, but it has to create a realistic ability to access the law.  That means providing good quality representation (and importantly permitting those bringing or defending a claim to select their own law agent).  Without client choice you are left in a situation where the State is selecting the representatives of those who it is brining a claim against or whom it is defending a claim against.  If you were suing your mobile phone provider and had to use the solicitor that they selected for you, you would instantly see a conflict of interest.  However, that same conflict does not seem to be as apparent when the State is involved (although it is there and just as important).  There has to be equality between the parties in the legal system and for those who cannot afford to pay their own legal fees it is left to the State to ensure fair access to legal representation.

In criminal cases, it is about defending yourself against serious accusations made by the State.  The consequences of conviction are, quite rightly, serious.  Conviction can lead to a loss of employment and a loss of liberty.  Not everyone who gets legal aid in criminal cases is guilty, a great many people are innocent and it is important that they are able to robustly challenge the State who has to prove their allegation.  It’s about ensuring fairness in the system; an individual against the might of the State (with the police and a professional prosecution service for back-up) is not a fair fight.  Legal representation is essential to ensure fairness (whether they are guilty or not).  It might be unpopular to see guilty people get vast sums of public money to defend themselves, but isn’t that a price worth paying to ensure that we have a fair and balanced system ensuring that, as far as is possible, only the guilty are convicted?

Judicial Review is very much disliked by the Government, as should be expected.  Judicial Review is the citizen challenging a decision made by the Government; it’s about ensuring that the Government only takes decisions which are legal.  It is an area under attack by the Government and it is vitally important.  Without effective access to judicial review, the State can go unchecked and be able to take decisions which are illegal.

The need for access to legal aid does not just extend to cases which involve the State.  Individuals seeking to enforce their contractual rights against a company or gain compensation when a company is at fault and they have lost out as a result or to enforce their consumer rights need to have the ability to seek recourse in the courts when pre-litigation action fails to achieve a result.  Without the ability to go to Court and seek a legally enforceable court order to enforce their rights, the rights that they have are effectively meaningless.  The threat of litigation can prevent litigation.  The knowing that an individual can seek recourse to the Court in order to give effect to their rights can be enough to make people comply with their obligations.  Without that effective recourse, people will be free to ignore their obligations with impunity.

Legal aid and access to justice go to the very heart of our constitution and democracy.  It’s not a benefit; it’s a constitutional right  Legal aid is much more important and serious that housing benefit or job seekers allowance (as important as those are); it’s fundamental to our society.

Scottish Government moves to recover lost FOI rights

On Friday it was announced that the Deputy First Minister of Scotland, Nicola Sturgeon MSP, laid before Parliament an order under section 5 of the Freedom of Information (Scotland) Act 2002.

Section 5 of the Freedom of Information (Scotland) Act gives the Scottish Ministers the power to designate such persons or bodies that appear to the Scottish Ministers to exercise functions of a public nature or are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority as public authorities for the purposes of the Freedom of Information (Scotland) Act 2002.

The power under section 5 has never before been used by any member of the Scottish Administration since the Act came into force on 1 January 2005.  Schedule 1 to the Freedom of Information (Scotland) Act 2002, which sets out those persons and bodies covered by the Act, has been amended by other statutory provisions as new public bodies have been created and as existing public bodies are abolished.

The new order, if approved, will make arm’s length bodies established by local authorities to provide cultural, sports and leisure services public authorities under the Freedom of Information (Scotland) Act 2002.  Since the Act was passed in 2002 there has bene a significant shift in the way that public services have been provided.  Local authorities have established companies to carry out a whole variety of functions.  These companies are not covered by the Freedom of Information (Scotland) Act 2002 and their establishment has represented a loss of information access rights.

This move is to be welcomed and it is an important step forward in ensuring that those who are responsible for spending public money and delivering public services are accountable directly to the people of Scotland for how they spend that money and provide those services.   However, it does little more than recover information access rights that have been lost and rectify a government failure in not designating these bodies earlier.  There remain bodies who carry out important public functions which, it is argued, should be covered by the Freedom of Information (Scotland) Act 2002.  If the Scottish Government is serious about FOI and extending its coverage, then it ought to go further and consult on other bodies (such as COSLA, the Law Society of Scotland and the Faculty of Advocates).

Changes to FOI in Scotland from 31 May 2013

Friday 31 May 2013 is the day appointed by the Scottish Ministers upon which the Freedom of Information (Amendment) (Scotland) Act 2013 comes into force.  This Act amends the Freedom of Information (Scotland) Act 2002 in some technical respects, and this post is a brief overview of the changes that will come into force next week.

Neither confirm nor deny

Section 18 of the Freedom of Information (Scotland) Act 2002 exempts public authorities from their normal requirement to identify whether information requested in a FOI request is held or not.  It applies only where certain exemptions could be claimed if the information were held.  Currently, public authorities cannot ‘neither confirm nor deny’ whether information is held if that information is personal information (exemption under section 38).  From Friday 31 May 2013, public authorities will be able to deploy section 18 where the information held is personal information.

Information available in the publication scheme

The Freedom of Information (Scotland) Act 2002 will be amended from 31 May 2013 to make it clear that information contained in a public authorities publication scheme is ‘otherwise accessible’ where applicable fees required by the public authority are set out in the publication scheme.  This will ensure that public authorities can utilise the section 25 exemption for information that is otherwise accessible to information contained within its publication scheme.

Historical Periods

Some of the exemptions in Part II of the Freedom of Information (Scotland) Act 2002 are no longer available to public authorities after a certain period of time has elapsed.  Changes to the Freedom of Information (Scotland) Act 2002 coming into force next week will give the Scottish Ministers more latitude in varying the periods that exemptions apply to certain classes of information.  They will be able to be much more specific in the exercising of this power than was previously allowed by Parliament.

Prosecution Time Limits

The time limit for prosecuting a public authority for alleged offence sunder section 65 of the Freedom of Information (Scotland) Act 2002 has been modified so as to make it possible to bring prosecutions where it appears that offences have been committed.  For all offences which have been committed on or after 31 May 2013, the 6 month time period for brining a prosecution will begin on the date that evidence which the prosecutor believes is sufficient to justify bringing proceedings comes to the knowledge of the prosecutor (and no more than 3 years after the date the offence was committed, or ceased to be committed in the case of a continuing contravention of section 65).  A certificate signed by the prosecutor as to the date sufficient evidence came to the prosecutor’s knowledge to justify brining proceedings will be conclusive of that fact.

Designation of authorities

The Scottish Ministers will be accountable to Parliament over their use (or lack of) of their power to designate bodies as public authorities for the purposes of the Freedom of Information (Scotland) Act 2002 under section 5.  The Ministers must lay a report before Parliament by 31 October 2015, and every 2 years after that, explaining why the power at section 5 has been exercised or gone unexercised.

The people whom the Ministers must consult before exercising their powers under section 5 of the Act has been extended to include ‘other persons as they consider appropriate’ in addition to those bodies covered by any proposed order (or those appearing to represent them).  This should, hopefully, open up section 5 order consultations to the public as well as the Scottish Information Commissioner.

The UK and the ECtHR: 2012 statistics

The Council of Europe (the body responsible for overseeing the European Convention on Human Rights) has published a document reviewing the cases handled by the European Court of Human Rights relating to the United Kingdom in 2012.  The document makes for interesting reading and rides a coach and horses through the lies and spin reported by the press in the United Kingdom – don’t expect to see the details of this report discussed in the House of Commons, in the Daily Mail or on the BBC.

During 2012, the European Court of Human Rights (ECtHR) dealt with a total of 2,082 applications concerning the United Kingdom of which 2,047 were either declared inadmissible or struck out.  This means that the Court refused to deal with, for one reason or another, more than 98% of the applications concerning the United Kingdom that it dealt with last year.  Of the 24 judgments (concerning 35 applications) that it did make, at least one violation of the convention was found in just 10 of those cases.  That means, of the judgments issued, 59% found entirely in favour of the Government while 41% found partially or wholly against the Government.  Putting those figures into the wider context, the UK partially or wholly lost in less than 0.5% of applications against it handled by the ECtHR last year.

It is argued by some that the ECtHR interferes too much in our domestic affairs; that contention cannot stand when put alongside the figures released by the Council of Europe.  The fact is that the Court chucks out the vast majority of the cases made against the United Kingdom without even issuing a judgment, and where it does the majority find wholly in favour of the Government.

Of course, the Human Rights Act 1998 (HRA) has to be taken into consideration as well when placing the effect of the Court in context.  Section 2(1)(a) requires UK courts and tribunals to “take account” of judgments, decisions, declarations or advisory opinions of the ECtHR when determining questions which have arisen in connection with a convention right (which for the purposes of the HRA are only those rights listed in Schedule 1 to the HRA).  That impact is slightly harder to quantify than the direct effect of the ECtHR on the United Kingdom through the judgments it issues concerning the United Kingdom.  However, the direct effect is extremely small and disproves some of the hysteria around the convention, especially that hysteria which says the ECtHR is frequently finding against the UK; it finds in favour of the UK Government more than it does against it.

The truth is the media only ever report the more contentious decisions, especially those which the Government have lost.  If you’re only hearing one side of the story you are going to end up with a rather unbalanced and biased view of things.  The question is, how do you counter the unbalanced and biased reporting?  Is it even possible to do so?

Abu Qatada and the Rule of Law

The latest episode in the saga that is the case of Othman (Abu Qatada) v the Secretary of State for the Home Department occurred today when the Court of Appeal refused the Home Secretary leave to appeal against the Court of Appeal’s earlier judgment to the Supreme Court.

The facts of this case are well rehearsed so I feel that I don’t need to go over them again.  As one would have expected, the Court of Appeal’s refusal to grant leave to appeal caused an uproar on the internet (and this was probably no doubt replicated in homes, pubs and offices around the country).  Let me be clear, I am no fan of Abu Qatada.  He is alleged to have committed some very serious crimes and it is right and proper than he faces trial in Jordan for those crimes.  However, it is equally right and proper that the United Kingdom upholds the law of the land, international law and its other international responsibilities.

Predictably, a lot of the comments were directed towards the judiciary and their apparent failings.  However, I would suggest that this is the wrong place to direct criticism towards.  The law is clear and it is for the judges to apply the law and to uphold the law.  Judges are not there to make or to change the law; that power lies with the Government and Parliament.  If courts are consistently finding against the Government on the same point of law, it would suggest that any problem that exists does so either with the law or the legal position of the Government.  In both scenarios only the Government, not the judiciary, can change the situation.

The Court is there to apply the law as enacted by Parliament and to uphold the rule of law.  They don’t take sides in any legal debate; they are not on the public’s side, the Government’s side or the side of any other party.  They are an independent tribunal charged with applying the law to a particular set of facts and to determine who, in law, is right and who is not.  The Appeal Courts are there solely to interpret the law which is then to be applied to the facts of each case by the lower courts.  They’re not there to look at whether a Court or tribunal below was right to conclude that a particular fact is indeed a fact or whether it is not; they are there simply to ensure that the lower courts and tribunals are applying the law correctly and to resolve any ambiguities in the law.

The Supreme Court only considers what are termed ‘points of law of general public importance’; those are legal questions and conundrums that affect a wide number of people in society.  They will look at serious legal questions and determine the law so that it is clear for all in our society and so that the lower courts are applying it consistently to all.

The Government is, like each one of us, subject to the law.  It does have a slightly more empowered position than the ordinary citizen has, in that should it lose a case in court it can (with the consent of Parliament) pass legislation to reverse the decision.  In this increasingly global world though, the Government (and Parliament) is somewhat restrained in what changes to the law it can make.  The United Kingdom has signed up to various international treaties, including many human rights ones (although we only ever really hear about the European Convention on Human Rights it’s not the only one we are signatory to) and then there are other principles of international law that the United Kingdom has to comply with as well (see my post on the ECHR, Abu Qatada and international law).

It is quite right that the Government is subject to the law in the same way that ordinary citizens are subject to the law.  If it were not, the Government would be extremely powerful with no real check or balance on its power and it would be impossible to effectively hold the Government to account.  There are countries where the Government is outside of the law (either constitutionally or because of the political situation is effectively outside of the law because the judiciary turn a blind eye).  When you look to those countries you soon realise that such a situation is not one which you want in this country.

Abu Qatada (and people like him) wants to destroy democracy and bring tyranny to the ‘West’; the Rule of law is fundamental to democracy.  If we suspend the Rule of law and start to allow the Government to ignore the law and judges to turn a blind eye to the Government ignoring the law the terrorists have effectively won.  Is that what you really want?

OSIC Decison 42/2013: Mr Ackroyd and the University of St. Andrews

I’ve been meaning to blog about this particular decision of the Scottish Information Commissioner for a couple of weeks now, but have just not had the time.  On 14 March 2013 the Commissioner issued her decision regarding a complaint made to her by Mr Martin Ackroyd in respect of the way in which the University of St. Andrews handled an information request (Decision 42/2013).

The background is set out in paragraphs 1 – 6 of the Commissioner’s decision.  Mr Ackroyd requested information in respect of E-mails received by a particular employee of the University.  The employee had written an article on an internet blog.  The employee later commented on the article alluding to embarrassing E-mails that he had been receiving as a result of the article.  It was these E-mails that Mr Ackroyd had requested.

The University argued that it did not hold the information for the purposes of the Freedom of Information (Scotland) Act 2002 (FOISA) stating that it held them on behalf of the employee (thus they would fall outside of the scope of FOISA by virtue of section 3(2)(a)(i) of the Act).  In the alternative it argued that even if it did in fact hold the E-mails that they would be exempt from disclosure under sections 38(1)(b) and 36(1) of FOISA.  These exemptions relate to personal information and confidentiality respectively.

Mr Ackroyd was dissatisfied with the Universities response and sent a requirement for review to the University.  In response the University upheld its original decision with modification.  The University still argued that the E-mails were not held for the purposes of FOISA, but if they were they would also be covered by section 30(b)(ii) of FOISA which relates to information which if disclosed would or would likely be to inhibit substantially the free and frank exchange of views for the purposes of deliberation.

Mr Ackroyd remained dissatisfied and sought a decision from the Scottish Information Commissioner pursuant to s.47(1) of FOISA.

The first thing that the Commissioner decided was that at least some of the information held was environmental information within the meaning od Regulation 2 of the Environmental Information (Scotland) Regulations 2004 (EISRs).  As a consequence the decision considers both FOISA and the EISRs.

The facts of the request get slightly more complicated.  The employee in question had bene the convener of a seminar held at the University and the blog that was written related to that seminar; it was published shortly after.  The decision notes that Mr Ackroyd drew attention to a certain comment in the blog piece “indicating that he [the employee] was commenting in his capacity as the convenor of the seminar” (paragraph 28).  The decision also records (at paragraph 28) that the employee had commented on the blog and mentioned papers that he (the employee) had written on the subject in question.  Mr Ackroyd argued that these two things together (along with other matters dealt with in paragraphs 29-31 of the decision) meant that the employee was acting in his capacity as an employee of the University.

The University argued that the life of an academic is such that the connection between work and private life is so fine and that sometimes they cross over.  They argued that an academic might use their association with the university in order to gain some credibility in their private life rather than as an employee of the university.  The University also argued that the convention of academic freedom created some independence between the University and its academics.  “The University also stated that it (and universities in general) extended to academic communities a relatively high degree of space, freedom and autonomy to engage with academic disciplines and pursuits and, as a result, information may be created which it would not move to claim or exert control over.” (para35)

There are more to the arguments of Mr Ackroyd and the University, but for the sake of brevity and so as to avoid replicating the Commissioner’s decision in full I have not mentioned all the ones referenced in the Commissioner’s decision.  They can be read in full in paragraphs 26-38 of the decision.

What did the Commissioner find?

The Commissioner decided that the seminar which had been chaired by the employee was part of the employee’s work at the University (paragraph 43).  The Commissioner also decided that the blog post was a continuation of the discourse of the seminar which he had chaired in his capacity as an employee of the University (paragraph 43) and that the employees ongoing involvement in the discussion that arose out of the seminar cannot be separated from the employee’s work at the University (paragraph 44).  Despite the personal nature of the e-mails the commissioner decided that they were held by the University for the purposes of FOISA (paragraph 49).  Paragraphs 60-62 deal with whether the information was held for the purpose of the EISRs and the commissioner reached the same conclusion as she did in respect of section 3(2)(a)(i) of FOISA (paragraph 62).

The Commissioner then went on to consider the exemptions that the University would have sought to apply had it been the case it held the information (which the Commissioner determined it did).  For the reasons set out in paragraphs 51-57 the commissioner found that section 30(b)(ii) of FOISA was not engaged and therefore not relevant.  No consideration was given to section 36 as it would appear that the University may have stopped relying on that exemption.

The Commissioner ordered the release of the withheld information to Mr Ackroyd subject to some redactions made by the Commissioner.



Before giving my thoughts on the decision I will note that I have only the Commissioner’s decision to go on.  I have not seen the blog or the comments nor have I seen the E-mails in question.

This is an interesting decision and one of importance for the Higher Education sector.  The decision explores some of the anomalies in the academic world that do not generally appear in other public authorities; namely the convention of academic freedom.  However, the decision could have wider application beyond the Higher Education sector.

Should academics be worried about the impact of the decision? I would suggest that they should not be.  It appears clear from the decision that where there is a genuine separation between the work undertaken by an academic on behalf of the University and that undertaken by the academic in a private capacity that the information will not be subject to FOISA.

For example, if an individual gives a lecture to an organisation because they are a specialist in the field and they mention their connection to a University I don’t think anything held on the University’s computer systems (or indeed the academic’s private systems) would become subject to FOISA simply because they establish their credibility by referencing the University at which they work.  Only where that lecture was given in the course of the academic’s employment at the University would it become subject to FOISA.

It is clear that the balance between what an academic does privately and what they do as part of their employment at the University is finely balanced.  Simply because an academic undertakes work in their spare time and the work is not such that the University would lay claim to it or it was not work which the University had sought the employee to undertake will not meant that it is not subject to FOISA or the EISRs.

It’s certainly an important decision and one that all FOI Officers in Scottish colleges and universities should have tucked away for reference to at a later time; it is not unlikely that similar situations will arise again in the future (especially given the public nature of academics work).

Criminal Legal Aid Contributions, Professional Representation and Justice in Scotland

Yesterday evening the Scottish Parliament voted by a majority of 9 to pass into law the Scottish Civil Justice Council and Criminal Legal Assistance Bill into law.  The Bill will now be submitted to the Queen for Royal Assent.  It was a disappointing end to a hard fought campaign by a wide range of people to try and prevent Part 2 of that Bill being passed.  However, it was always going to be an impossible task with the Government having a majority in Parliament.

The first part of the Bill; the establishment of the Scottish Civil Justice Council, was generally uncontroversial and was the result of a lengthy piece of work submitted to the highest levels of scrutiny.  The Scottish Civil Justice Council came as a consequence to the review of civil justice in Scotland carried out by the now Lord President, Lord Gill.  It is a shame that this element of the Bill was overshadowed by the second part of the Bill.  Had the two been separate it is likely that the Scottish Civil Justice Council part would have received unanimous support in the Scottish Parliament.

The significant expansion of contributions to criminal legal aid as a result of this legislation will have a profound impact on justice in Scotland.  I’m not going to write at great length on the merits of the Bill as I have done that in a number of posts (and others have written elsewhere much more eloquently than I have).  The proposals will undoubtedly lead to a number of appeals under Article 6 of the European Convention on Human Rights (the right to a fair trial).  The Government and Presiding Office (presumably with legal advice) are both happy that the contents of the Bill are compliant with the European Convention on Human Rights; however, there is the very real possibility that the contributions system will begin to give rise to “devolution minutes” once it begins to take hold in the system.  That will certainly be something to keep an eye out on to see what happens in that respect.

It is clear from speaking to practitioners in person and through social media that there is a very real anger over yesterday’s result.  It is just one of many things to have arisen over the last few years that have caused anger.  Some of that anger is directed towards the Law Society of Scotland; particularly in their representation of the profession in these matters.

It has been reported that there was to be a challenge lodged to the Society’s position as the sole representative body of Solicitors in Scotland which will be founded upon Article 11 of the European Convention on Human Rights.  I am not a solicitor and I have not had many dealings with the Law Society of Scotland.  I only know what others have told me (and I’m not inclined to make my own decision purely upon the basis of third party complaints).  However, it has always been something that has intrigued me about the legal profession.  I’m a supporter of Trade Unions and the representative functions that they undertake.  However, I’m equally supportive of a person’s right to choose their representative body (and to elect not to belong to such a body).  That goes not just for lawyers, but for others who have a single statutory representative body with no choice as to who they have representing them.

I think it is only right that if people want a different representative body that this is a choice that they have.  It will be interesting to see if this case goes ahead and what the outcome of it might be; it could have a profound effect on the United Kingdom extending beyond the legal profession.

The fight to ensure justice in Scotland will no doubt continue as the programme for reform of the criminal justice system continues over the coming years.  There are proposals in the pipeline that will likely gain similar; if not greater, reactions from the legal profession (corroboration and contracting to name two).  It’s an unsettling time in the criminal law for Scotland; but it’s an equally interesting one.

Changes to FOI in Scotland approved

Yesterday the Scottish Parliament passed the Freedom of Information (Amendment) (Scotland) Bill which will make some amendments to the Freedom of Information (Scotland) Act 2002 (FOISA).  The Bill will now go forward for royal assent.  The Bill as finally approved by the Parliament can be found here.

While the Bill does make some important and much needed changes to FOISA, there is much more that the Parliament could have done to strengthen the Bill and the message that FOI is here to stay in Scotland.

One of the most controversial elements of the Bill was the removal of the public interest test in relation to information which is exempt under the so called ‘Royal exemption’.  The Scottish Government, to their credit, did listen to oral and written evidence submitted to the Finance Committee on the Bill and removed that amendment from the Bill at Stage 2.  The debate about the Bill then moved to what was missing from it rather than what was contained within it; primarily because what was missing was of much more concern than what was there.

One of the most significant changes which was passed by the Scottish Parliament can be found at Section 5 of the Bill.  This changes the time limit for proceedings under s.65 of FOISA.  Section 65 creates a criminal offence to alter, deface, block, erase, destroy or conceal a record held by the authority with the intention of preventing disclosure.  Currently, FOISA means that a prosecution for an offence under this section can only be initiated within 6 months of the offence being committed.  With the timescales permitted by FOISA it was impossible for a prosecution to be brought because it could be as many as 4 months before the request gets to the commissioner and could be 6 months before the Commissioner’s office is even aware that a s.65 offence may have been committed.  The change that will come about as a result of this Bill means that a prosecution can be brought where it is done so within 6 months of evidence that the prosecutor believes is sufficient to justify the proceedings coming to the prosecutor’s knowledge (so long as it is not more than three years since the offence was committed).

I am not suggesting that there are significant numbers of these offences being committed, but there is little doubt that some will have been since 2005 and the impossibility of a prosecution ever being brought might have acted as an incentive for an authority so minded.  The Bill passed by Parliament yesterday reinforces the fundamental nature of FOI and that those who seek to frustrate the FOI process will be prosecuted for it.  It will be interesting to see if prosecutions do arise once the amendment comes into force.

Another significant change is at s.4 of the Bill and it relates to when information becomes a historical record.  This will hopefully mean that information held by public authorities will be released much quicker than it might otherwise have been and that can only be a good thing for transparency and openness in public life.

Since the Bill was first published there was one thing that was noticeably absent and that was provision to extend the coverage of FOISA to bring (at the very least) the public’s FOI rights back to where they were in 2005.  Since FOISA was passed in 2002 and came into force in 2005 there have been significant changes in the way public services are provided.  Local authorities have transferred significant amounts of their work to private companies (many of which are publically owned); housing and leisure facilities are two prominent examples.

When these functions were carried out by local authorities the information held was subject to FOI and could be obtained to scrutinise work in these often important areas, but as these activities have been transferred to these ‘arms length organisations’ (Aleos) they have stopped being subject to FOI and people’s FOI rights have been reduced.

The Deputy First Minister made much of the designation power at s.5 of FOISA (to which some changes have been made to strengthen ministerial accountability over the use (or lack of) of these powers) and how it was the Government’s intention to use the powers.  The current Government has been in power for almost six years and in that time not a single s.5 order has ever been made by them.  The previous Government had not made any such orders either, but they left power only two years after FOISA came into force and were in power during a time when FOI was still bedding down and its extent and coverage was still, to an extent, being worked out.  The fact that for six years the current Government has made no real effort to ensure that FOI rights are maintained, let alone extended in appropriate cases, is a significant failure.  The Scottish Government can try and cover it up in any which way that they choose, but the fact remains that they have not issued a single s.5 order.

The Bill was, in the Government’s view, never about extending coverage.  However, it should have been.  While Parliament was spending time debating and considering FOI in Scotland it would have been a perfect opportunity to at least include those organisations previously consulted on in the coverage of FOISA.  An amendment was moved yesterday by Iain Gray MSP to include Glasgow Housing Association into the list of Scottish Public Authorities, but that was defeated.  A move to insert a more general amendment that would have made information held by a significant number of Aleos subject to FOISA was also rejected by the Parliament.

The Government frequently tells of its commitment to openness and transparency; indeed it was referred to many times during the passage of the Freedom of Information (Amendment) (Scotland) Bill through the Scottish Parliament.  However, the Government could have demonstrated that they truly adhered to that commitment by agreeing to include those organisations previously consulted over into FOISA.

The Deputy First Minister has committed to issuing at least 2 s.5 orders; we really must see a substantial one issued this year and preferably before the summer.  Anyone in Scotland who believes in FOI must now ensure that pressure is put on the Government to keep its commitment to use s.5 and to get it to do so early.

Iain Gray MSP put it well in the chamber yesterday when he said:

The point is that FOI legislation tests a Government’s moral fibre. No Government likes FOI. FOI is always inconvenient, but it is the right thing.

The Bill certainly has made some important and much needed changes, but it fell far short of what was needed.

The full Stage 3 debate can be read in the Offical Report of the Scottish Parliament

Consultation on safeguards after the abolition of corroboration

On Wednesday the Scottish Government issued a consultation document looking at some of the safeguards that might be needed to be introduced to Scots law when the requirement for corroboration is removed.

I have expressed my views on corroboration before on this blog and I do not intend on getting into that issue in any great detail here; it is suffice to say that I am a supporter of the requirement for corroboration and a subscriber to the idea that if something isn’t broken then there is no need to go and fix it.  However, the Justice Secretary is clear that he wants to abolish the requirement for corroboration and that parliamentary arithmetic means that short of a rebellion by his own backbenchers (unlikely) then he will get his way.  It is therefore essential that everyone engages with this consultation to ensure that the protection for the accused in a criminal trial is not diminished.

Corroboration is a fundamental issue to our justice system.  The rule is not, as the media have been saying, that there must be two pieces of evidence before there can be a conviction.  It is rather more complicated than that, but it essentially requires that there are two independent sources of evidence to support each of the material facts of the case.  It applies in all cases before all criminal courts in Scotland.

The first thing to note about the Government’s consultation document is that it focuses almost exclusively on cases where a jury is involved.  Not everyone in Scotland is tried by a jury and there is no right to a trial by jury in Scotland.  The decision as to whether you are tried with or without a jury rests with the prosecutor (which has to be decided within the confines of certain rules; for instance some offences fall within the exclusive jurisdiction of the High Court of Justiciary where there is always a jury).   The Government’s almost exclusive focus on jury trials means that only those accused persons who are indicted benefit from the additional safeguards introduced post-corroboration.

The vast majority of criminal cases in Scotland are prosecuted on a summary complaint.  This means the cases is heard by a sheriff sitting alone in the Sheriff Court or by a lay Justice of the Peace in the Justice of the Peace Court (or if in Glasgow a legally qualified Stipendiary Magistrate).  There is no jury involved and as such the vast majority of criminal accused persons in Scotland are going to miss out on additional safeguards to reflect the lack of corroboration.

The very fact that the Government has issued this consultation is a recognition by them that corroboration is so fundamental to the justice system in Scotland that to abolish it means that additional safeguards need to be introduced to ensure that the accused is not disadvantaged.  If that is accepted by the Government then it applies equally to summary and solemn criminal cases.  It recognises that a lack of corroboration makes it somewhat easier to convict and that something needs to be done to address the balance to ensure that it is not too easy to convict.

The specific proposals contained in the consultation document are interesting.  The first is to increase the number of jurors required to be convinced by the Crown that they’ve proved their case in order to convict.  Currently, the system permits a simple majority of 8 out of 15 jurors to convict.  The consultation document suggests increasing this to 9 or 10.  I don’t see how increasing it by one or two is sufficient.  Having given it some brief thought I would think that something along the lines of 12 out of 15 would be more suitable.  There needs to be at least 12 jurors for there to be a quorum in Scotland.  If the number of jurors falls below 12 then that jury cannot reach a verdict.  If the number was fixed at 12 this would mean that losing three jurors would require a unanimous verdict.  That doesn’t seem suitable either, so as I’ve given it some thought.  My (brief) thoughts have resulted in a proposal which would see the number of jurors required to convict decrease proportionally in line with the number of jurors available; ensuring that at least three-quarters of the jurors were convinced by the Crown’s case.  That would mean in cases where there are 15 jurors that 12 would be required and where the jury falls to just 12 members the number required to convict would be 9 jurors.

I consider that this proposal is fair for both the accused and the prosecution.  It means that the prosecution always has the same task: to convince at least three-quarters of the jury that they have proved their case beyond reasonable doubt.  A fixed number would mean that in cases where jurors are lost (for example through illness) the crown’s task doesn’t get easier (for example only having to convince 60% of the jurors in one case and 75% in another).  It also avoids unfairness to the Crown because they will not be in the position where they find themselves having to seek a unanimous verdict in one case and a majority verdict in another.

The other proposal in the Government’s consultation is that where a jury fails to reach a verdict that the Crown could be able to seek a re-trial of the accused.  I would not support such a proposal.  It is the Crown’s job to prove a case beyond reasonable doubt.  If a jury fails to reach a verdict then the Crown has failed in that task.  There is such a procedure in England and there have been cases where the defendant has been tried three times before the Crown finally got the verdict it was seeking.  Is this fair?  Should the Crown be able to repeatedly prosecute someone until it gets the verdict it wants?  No, it’s not.  It is simply placing too much power in the hands of the State.  If the Jury fails to reach a situation whereby the required number of jurors cannot be convinced of the Crown’s case the accused should be acquitted.

In serious cases the Crown now has the opportunity of seeking a fresh trial under the Double Jeopardy (Scotland) Act 2011 where certain conditions are met.  If the only reason a person hasn’t been convicted is because of the ineptitude of the Crown I don’t see why the Crown should be able to repeatedly prosecute someone.  It will mean, of course, that guilty people will likely get away with their crime.  However, the solution to that is for the Crown to ensure that they have the strongest possible case before prosecuting someone.  Where the Crown has been unable to secure a conviction because evidence was genuinely not available to them at the time then the 2011 Act permits them to go back to the Court and seek permission to charge the accused with the crime again.  Had the 2011 Act not been passed then there might have been an argument to allow a retrial procedure as proposed by the Government.  However, with the existence of the 2011 Act there is no real argument for it.

The final proposal looked at in the consultation is the question of the “Not Proven” verdict.  I have for along time considered that having three verdicts in Scotland serves little useful purpose and we should move to a system of having only two verdicts.  Derek Ogg QC said on Newsnight Scotland (Wednesday 19 December 2012) that he had been persuaded that we should return to “Proven” and “Not Proven”.  I find this persuasive; although I do consider the arguments favouring “Guilty” and “Not Guilty” to be strong.  I don’t see the role for a third verdict which has the same practical meaning and effect as another.  Unless the third verdict were to mean something different to the aquittal verdict there seems little point in keeping it.  In my experience, what the public consider it to mean bears no reflection on the reality and it could be argued that a third verdict is simply confusing to those without an understanding of the criminal justice system.  Again, I’ve explored my views on the three verdict system on this blog before in detail so I will say no more on the question here.

As I have argued before on this blog it ought to be difficult for the Crown to secure a conviction.  That is not to say that it should be impossible; but the system should be weighted in such a way so as to ensure that the Crown is faced with some difficulty in securing a conviction.  A conviction in a criminal court is more than simply a finding of fact; it signifies that the offender has broken society’s rules and that he/she is deserving of punishment for that offence.  That finding could have a significant impact not only on the accused, but also on their family.  A conviction might result in a loss of liberty or a loss of employment.  Both of these situations might well have a profound effect on the family of the accused who are entirely innocent and will be indirectly punished by a loss of liberty or employment.  The stakes are so high that it is essential that the State cannot easily convict people.

The Government’s consultation is open until 15 March 2013.  I would encourage everyone to respond and engage with it in a meaningful way; regardless of your view as to whether corroboration should stay or go.  The likelihood is that it will go and it is important that properly considered safeguards are put in its place to ensure fairness in our criminal justice system.