Acid test if freedom of information laws diverge

Let us say an MP wrote to the Ministry of Defence commenting on the state of the perimeter fencing around a defence establishment. Clearly, under the proposed amendments, that information would be exempt from disclosure even if the site of that defence base was in Scotland. This is because the Ministry of Defence, as a UK public authority, is covered by the UK legislation.

If the Westminster MP were to write in similar terms to a school about the state of fencing around its playing fields, the result, however, could be different depending on whether the school was in England or Scotland. If the proposed amendments were in effect, an English school could regard any information contained in the letter from the MP, or for that matter in its response, as exempt without further consideration. (Indeed, the school would not have to confirm or deny that the exchange of correspondence had taken place.

) However, in Scotland the exchange of correspondence with the MP would not necessarily be exempt, as the local authority responsible for the school would be covered by the Scottish legislation, which cannot be amended by a vote at Westminster.

Will that divergence affect the type of nformation which sees the light of day?

In all of this we should also be clear that MSPs are unaffected by the proposed amendments.

If an MSP were to write to the MoD - or for that matter to a school anywhere in the UK - their correspondence may be disclosed, subject only to existing legislative safeguards.
The real-life effects of the proposed changes are difficult to gauge. I am not aware of parliamentarians' correspondence, far less any which contained personal details of constituents, being the focus of any appeal to me or my UK counterpart.

However, it is not difficult to imagine that information about MPs' views could be caught up in a more general request. Let us say there was a Home Office consultation on asylum matters. Representations made by local authorities, the police, charities and the public could be disclosed, subject to the existing safeguards in the freedom of information laws.

However, the consultation responses made by an MP could be regarded as exempt as a matter of course, if the changes go ahead.
Of even greater impact is likely to be the other element of the Bill which, in one sentence, takes the whole of the House of Commons and the House of Lords outside the scope of freedom of information laws. If the Scottish Parliament had never been covered by our Freedom of Information Act then the parliamentary authorities would not have had to respond to requests about the costs of building the parliament, or the maintenance of the chamber roof following the beam swinging loose, or the correspondence between the Presiding Officer and Sir Sean Connery.

Of course, some material may be supplied voluntarily, but without the rights provided by the Act, no-one could appeal to me against a refusal. One such appeal was against the refusal to provide details of MSPs' expenses and, as is well known, I ordered release. I know only too well that this was not greeted with unalloyed delight by MSPs.

But our parliamentary authorities did not seek to appeal the decision, in the way that the House of Commons did. Instead, they gritted their teeth and arranged to publish on the web all the costs incurred by each MSP. As a result, the Scottish Parliament is now recognised as one of the most transparent and accountable in the world.

The Scottish freedom of information legislation already has distinct variations from the provisions passed at Westminster. If David Maclean's Private Member's Bill is carried into law and the Lord Chancellor's tightening of the fee regulations goes ahead, then we will begin to see real divergence between the regimes north and south of the border. The acid test is the extent to which this affects the type of information which sees the light of day.

As Scottish Information Commissioner Kevin Dunion is responsible for enforcing the Freedom of Information Act (Scotland) 2002.
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Excellent. What a pity - and a condemnation of the Scottish media - that this type of detailed piece, explaining the clear and direct impact of the new Bill on SCOTLAND, has only now appeared in a main Scottish newspaper.

Where were these papers over the past few months when the Bill was going through the Commons? Other than a few factual reports of the Bill's progress, virtually nothing! Perhaps they, like many in the Scottish political establishment, thought - totally wrongly - that this Westminster Bill would have no effect on Scotland.

Even though the Bill is now in the Lords, readers here can still join the campaign to kill the Bill. (1) Write to your MP - including those who said they were opposed to it (including the whole SNP HC Group, inc our new First Minister) but didnt vote last Friday at all. (2) Send the HC and HL FoI requests on issues Kevin refers to, while they still legally have to respond - this exemption goes much wider than the issue of expenses: foicommons@parliamen