1. Rights to information frequently feature in constitutions
As we know only too well, the Scottish Government’s current view, as set out in Scotland's Future, is that “The right time for a written constitution to be drafted is… after independence not before”. [i]
This has given rise to a concern that, in the event of a Yes vote in September “Good constitutional design, so essential to the health of a country, is likely to be forgotten in the rush” to address immediate practical needs, such as to organising the Armed Forces or issuing postage stamps. [ii]
So what prospect is there for promoting desirable but less pressing elements of the constitutional architecture, such as a right to information?
Over 60 countries across the globe provide an explicit guarantee of a right to information in their constitutions including long established democracies like Sweden, Norway and New Zealand. Even in nations emerging from the shadow of dictatorship, corrupt rule or civil strife access to information is not seen as the last thing on the constitutional agenda but a fundamental component of democratisation and political accountability, whether in vast and populous Brazil or tiny Liberia. Constitutional guarantees of the right to information are provided in Serbia, Bulgaria, and Poland and much more recently, summoning the faint winds of the Arab Spring, have been agreed in Tunisia.
In fact so extensive are the constitutional references to a guaranteed right of access to information that it would be concerning if Scotland was to unwittingly overlook or deliberately omit such a right, in the event that a written constitution was required.
2. What has been proposed for inclusion in a Scottish constitution?
In the debate on a prospective Scottish Constitution some attention has been paid to freedom of information. Notwithstanding its current strictures, the Scottish National Party published a proposed constitution back in 2002. It provided that: “Every person shall have the right of access to governmental information save on a restricted range of matters in which secrecy or confidentiality is authorised or required by law and in the public interest.”[iii]
More recently Elliot Bulmer of the Constitutional Commission published a model Scottish constitution in which he proposed “Every person shall have the right of access to government information. The right of access to official information can only be restricted by law to the extent necessary, in a democratic society, for the purpose of protecting personal privacy, national-security, or diplomatic confidentiality or for ensuring the due process of judicial proceedings.” [iv]
There is a significant difference of wording between these two versions, which needs to be addressed, but the question also arises as to whether either is sufficient.
The SNP version could be said to underpin the current access to information regime in Scotland, as expressed by the Freedom of Information (Scotland) Act 2002 (hereafter FoISA). There is a slight departure, in that the SNP constitutional provision requires that exemptions be justified in law and in the public interest. Currently certain of the exemptions in FOISA permitting information to be withheld, are absolute and are not subject to any public interest test. For example, if the disclosure of the information would constitute an actionable breach of confidence, it is absolutely exempt. The SNP version would make this subject to a public interest test, which is generally held to be good practice by FoI advocates. However extending the consideration of the public interest to a few exemptions is hardly a major departure from current provision and could readily be given effect by a straightforward amendment to FOISA.
Bulmer’s version is more radical and has the effect of significantly narrowing the scope of exemptions, and would appear to exclude some of those most frequently relied upon by authorities. The current refusals to provide information in order to protect the formulation of government policy or the ever- popular, catch-all claim of an exemption on the basis that disclosure of requested information would prejudice substantially the conduct of public affairs, would, it appears, come to an end. Although many would argue that these particular exemptions could do with narrowing, the restricted form of constitutional wording would require extensive and no doubt heavily contested changes to FOISA.
The question also arises as to whether the proposed wording is at variance with the Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters (the Aarhus Convention) and the related Directive 2003/4 EC, which allows certain exceptions, on grounds other than suggested by Bulmer. For instance, requests under the Convention and Directive can be refused if disclosure of the environmental information sought would adversely affect intellectual property rights. [v]
3. Do the currently suggested rights go far enough?
Yet in another respect neither the SNP’s or Bulmer’s version go far enough, or at least do not have insufficient clarity when stipulating that the constitutional right would be to governmental information. On the face of it, this does not necessarily apply to information held by the plethora of arms-length organisations set up to deliver public services or by those private companies carrying out public functions. In my previous capacity as Scottish Information Commissioner I drew repeated attention to the erosion of the right to information as a result of this trend, examples of which include Council social housing stock being transferred to housing associations, whilst other local authority services, including care, building, and leisure and recreational services are being delivered by charitable trusts set up for that purpose. Commercial providers have long –term contracts to provide custodial services and health facilities. Sodexo runs Scotland’s newest prison, HMP Addiewell, whilst SERCO has a 25-year contract to operate HMP Kilmarnock. The Royal Infirmary of Edinburgh is built and operated under a long- term private finance initiative contract with Consort Healthcare, a subsidiary of Balfour Beatty. None of these are directly subject to freedom of information laws.
Scottish Ministers currently have the power to bring such charitable trusts or commercial bodies within the scope of FoISA by designating them as public authorities if they “appear to Scottish Minsters to exercise functions of a pubic nature” or “are providing, under a contract made with a Scottish public authority, any service whose provision is a function of that authority.” [vi] However, until recently, a succession of Ministers have shown a marked reluctance to use such powers since FoISA came into effect in 2005, despite public opinion being in favour of the right to information applying to such bodies. Indeed only in 2014 is the power to be used for the first time to designate leisure and recreation trusts established by local authorities, which as a consequence will have to comply with FoI requests.
Constitutional provision can be made so that the right to information applies to the exercise of public functions, however delivered.
The Centre for Law and Democracy in Canada has advanced a proposed model constitutional wording in this respect, which makes up in utility for what it loses in elegance:
“Everyone has the right to access all information held by public authorities, defined broadly to include all branches and levels of government, bodies which are created by the constitution or by law, bodies which are owned or controlled by other public authorities, and bodies which are substantially funded by other public authorities or which perform a public function, to the extent of that funding or function.” [vii]
No doubt, there will be debate – political and legal- as to what constitutes a public function, or what constitutes control. But such argument already takes place. A similar constitutional declaration would however make clear that the right to information should not be allowed to be easily circumvented, as is done currently, by establishing a body that is not wholly owned by a public authority to carry out public functions.
It is to be expected that in the event that a Scottish constitution is required, it will contain a right to information. Whilst the existing Freedom of Information (Scotland) Act 2002 has served well enough it has been overtaken by better regarded recent FoI laws elsewhere which are more capable of encompassing the changing nature of the delivery of public services. Constitutional provision could be framed with the intent that the right to information follows the public pound – whether spent directly by government or traditional public bodies or channelled through charitable or private providers - so fulfilling one of the key justifications put forward for having a right to information, which is to allow the public to exercise direct oversight.
Kevin Dunion is Honorary Professor and Executive Director of the Centre for Freedom of Information, School of Law, University of Dundee
[i] The Scottish Government (2013) Scotland’s Future: from the Referendum to Independence and a Written Constitution, 1.4.
[ii] Bulmer, W.E. (2011) A Model Constitution for Scotland, Luath Press, p.16.
[iii] Scottish National Party, A Constitution for a Free Scotland (2002), Article 10.
[iv] Bulmer op cit p.148.
[v] Directive 2003/4/EC Article 4(2) (e) 43ERe.
[vi] Freedom of Information (Scotland) Act Section 5.
[vii] Centre for Law and Democracy, Entrenching RTI: An Analysis of Constitutional Protections of the Right to Information, March 2012 p.22,