Katy Clark explains why she has laid a badly needed Bill before the Scottish Parliament

This month, I plan to introduce my first Member’s Bill to the Scottish Parliament, with the aim of reforming Freedom of Information (FOI) law and making it fit for the present day. It’s an issue that transcends party lines, and I anticipate I’ll be collaborating with MSPs from across the parliament to build support.

As socialists who believe in the extension of democracy to every sphere, this is an issue we must pay close attention to. Tony Benn famously said that those in positions of power should always be asked what precise powers they have, where they got them from, in whose interests they use them, to whom they are accountable and how to get rid of them. His argument was simple: if you cannot adequately answer all five of these questions, you don’t live in a democracy.

Of course, Benn was primarily talking about individuals who wield political, social and economic power in various guises, but these questions also apply to wider public institutions which are meant to serve us. It’s generally agreed people should have the right to full disclosure about how they’re governed and how their services are delivered in a democratic society.

Yet despite being internationally recognised as a substantive human right, FOI has only been codified as legislation in Britain for a couple of decades. In 2000, the UK Government’s Freedom of Information Act received Royal Assent, which was followed by an equivalent Freedom of Information (Scotland) Act in 2002. The Act provided public access to information held by public authorities, obliging bodies to publish certain information and enabling members of the public to request it.
The Scotland FOI act was one of Scottish Labour’s greatest achievements in coalition government and the principles which underpin it remain vital to this day.

Twenty years on, though, there’s serious debate about whether this legislation is out of date and needs reform. How we are governed changes over time and institutions evolve, as do the cultures of government and the civil service depending on the challenges it faces.

The most insidious development has been how public bodies have sought to find ways to evade accountability and transparency. Disclosure of information is supposed to be the default, but too often public authorities rely on confidentiality clauses to avoid scrutiny. This has significant ramifications when it comes to public procurement and how taxpayers’ money is spent. Why should companies that build and run our schools, hospitals, prisons or roads not answer to the public? It’s a key reason I’m launching a member’s bill to reform FOI and address some of close existing legal loopholes and ensure legal rights and duties are enforced.

In May, Daren Fitzhenry, Scotland’s Information Commissioner, reported there were significant failures in record keeping and complying with procedures, as well as ‘systemic concerns’ when it comes to monitoring requests. The issue isn’t just incompetence it seems but an outright failure to apply the existing law and even act within the spirit of the law.

My Bill proposes a new statutory role of ‘Freedom of Information Officer’ in every designated body so staff have the expertise to comply, clearly understand the process and deal with requests consistently.

Another pressing aim is to ensure FOI legislation keeps pace with how public services are delivered. In many sectors, taxpayer funded services are now delivered by private and third sector organisations, in health and social care and other sectors. 

In 2018, Audit Scotland reported councils were using an estimated 130 arms-length external organisations, which have an annual spend of more than £1.3bn. It’s wrong that any public service provider is siphoning off profits for shareholders. But what’s most alarming is these unaccountable and often opaquely owned firms, which receive public money to make critical decisions that affect us all, are subject to next to no scrutiny whatsoever.

This has been particularly apparent during the pandemic, with thousands tragically dying in care homes. Grieving families have in many cases been unable to elicit key information because so many homes are in the private sector and entirely exempt from FOI. In dozens of cases, these care firms are owned offshore in tax havens and profiteering on a rampant scale. Under the Scottish Government’s National Care Service proposals, nothing will be done to address this.

Newly set up Community Health and Social Care Boards will be subject to FOI but private providers will not, despite the Scottish Government consulting on this very proposal only three years ago. There are also ramifications when it comes to equalities issues. For example, providers of disability services are overwhelmingly in the private or charity sectors, meaning a vulnerable section of the population effectively lack access to key information on decisions which affect their everyday of lives. Extending FOI coverage to these companies should be a no-brainer, but despite Holyrood’s post-legislative scrutiny committee making this very recommendation two years ago, next to little progress has been made.

That’s why I’ve developed my Bill with the assistance of the Scottish Campaign for Freedom of Information and with the support of the Scottish Trades Union Congress (STUC). In the absence of action by the Scottish Government, it’s time the left took a lead on this issue and pushed for vital reform.

Consultation on the Bill goes live soon. I hope that everyone who wants to embed a culture of openness, transparency, accountability and empowerment in Scotland will participate in this process.

Katy Clark is a Scottish Labour MSP for West Scotland. She was previously the Labour MP for North Ayrshire and Arran between 2005 and 2015.