Ramsay HallSolicitor0131 656 3782ramsay.hall@brodies.com

Freedom of Information legislation both north and south of the border makes it a criminal offence to destroy or alter information which has been requested and should be disclosed. Changes to the law have been recommended in Scotland and the rest of the UK in an attempt to ensure that public authorities guilty of such behaviour are punished.

Section 65 of the Freedom of Information (Scotland) Act 2002 ("FOISA") provides that it is an offence to alter, deface, block, erase, destroy or conceal any information which a requester for that information is entitled to receive under FOISA. Importantly, before they can be guilty of the crime, the public authority and/or an individual employee must have made the alteration etc with the intention of preventing disclosure.

Because a section 65 offence is currently triable on summary conviction only, a prosecution in Scotland must be brought within six months of the unlawful act being committed.

Concerns about the adequacy of section 65 were raised on a number of occasions by Kevin Dunion, the former Scottish Information Commissioner (click here for example).

He argued that six months was too short a timescale within which to bring prosecutions

against individuals who tampered with information requested under the FOISA. In his view, the passage of time between commission of the offence and it coming to light, combined with the time needed by Office of the Immigration Services Commissioner ("OSIC") to investigate alleged wrongdoing meant that bringing prosecutions within the time limit was not practically possible.

The Freedom of Information (Amendment) (Scotland) Bill introduced in the Scottish Parliament in May 2012 seeks to address, amongst other matters, this perceived defect in the FOISA. The Bill, which is currently at Stage 1 of the Scottish Parliamentary process, would, if passed, change the "trigger" which causes the six month period to begin. If passed, that period would start on the date “which evidence that the prosecutor believes is sufficient to justify the proceedings came to the prosecutor’s knowledge”.

Although, on the face of it, that would give the procurator fiscal considerable latitude, there is a limit; a prosecution could not be brought more than three years after the date on which the offence was committed (or, where it was a continuous contravention, three years since the contravention last occurred).

Interestingly, Westminster MPs appear to

have set about following their Scottish counterparts. On 26 July 2012, the Justice Select Committee produced a report into the Freedom of Information Act 2000 which considered the adequacy of section 77 of the 2000 Act (the UK equivalent of section 65).

The report goes further than the intended Scottish amendments, proposing the complete removal of the time limit for section 77 prosecutions in the rest of the UK.

The Ministry of Justice will consider the Justice Select Committee's report before the Cabinet decides whether to propose any changes to the existing 2000 Act.

What is clear from the recommendations of the Select Committee, and the introduction of the Freedom of Information (Amendment) (Scotland) Bill, is that there is renewed commitment to punish those who tamper with information which ought to be disclosed.

Accordingly, public authorities both north and south of the border should maintain a constant and robust vigilance so as to ensure information which ought to be released is not destroyed or altered.

Upping the ante: Punishments for altering information sought under FOI

Parliamentary UpdateAugust 2012

Christine O’NeillPartner0131 656 0286christine.oneill@brodies.com

Regular readers will know that our Parliamentary Update discusses issues of current importance, together with summaries of recent parliamentary activity and government consultations. While the constitutional debate on Scotland's future will occupy much of our attention over the next couple of years, there is ongoing legislative activity of importance to public authorities and others in Scotland.

This update focuses on reform of Freedom of Information legislation both north and south of the border, as well as reform of the organisation of both the police and fire services in Scotland. It also provides details of current consultations and Bills.

Blue lights set to change: Police and Fire Reform (Scotland) Act 2012

A single police force and fire service moved a step closer as the Police and Fire Reform (Scotland) Act 2012 (“the Act”) became law. The Act received Royal Assent on 7 August 2012 and its provisions are due to come into force gradually during the course of this year. It is anticipated that the new single police force and fire service will be up and running by April 2013.

Police reform

The Act will create the second biggest police force in the UK, which will be called the Police Service of Scotland (“the Police Force”). The Police Force will be maintained and operated by a new corporate body, the Scottish Police Authority (“the SPA”).

The proposed reform raises a number of interesting public law issues. Firstly, the Act imposes a duty on the SPA to prepare a strategic plan that must be approved by Scottish Ministers. This will provide the Scottish Ministers with a regular opportunity directly to scrutinise service provision and to hold the Chief Constable of the Police Force to account for the strategic plan. The right of Scottish Ministers directly to scrutinise policy is one of the more controversial elements in the Act and was critcised by the Liberal Demo-crats during the parliamentary debate. The main criticism was that direct scrutiny by Scottish Ministers centralises power to the detriment of local accountability. The Scottish Government, in its consultation paper on police reform, noted that Audit Scotland had highlighted the lack of accountability for national strategic decisions within the police service and said that central scrutiny was required. The Scottish Government has also sought to reassure skeptics that the principle of operational

independence for policing will be maintained. What is clear is that the provisions relating to the creation of a strategic plan do represent a new layer of accountability for the Chief Constable and the Police Force in setting policy.

Mindful of the effect of replacing local forces with the Police Force, there are provisions in the Act which seek to retain local accountability for policing. The Chief Constable of the Police Force must consult with local authorities to appoint local commanders. The Act requires the local commander to work with the relevant local authority in setting objectives and priorities for policing in the area. This includes the creation of a local police plan that includes a duty to “have regard” to the strate-gic plan and to consult with officers and others before it is prepared.

Legislation often obliges public bodies to “have regard” to various matters and to “consult” various bodies and people to ensure that those public bodies are accountable for what they do. A failure to “have regard” or to “consult” can lead to legal challenge in the courts. A high profile example of such a challenge is the failure of Michael Gove, Secretary of State for Education, to have “due regard” to various provisions of equalities legislation when cutting funding for school building improvements. Mr Gove’s decision successfully was challenged by six English local authorities and he was ordered by the court to reconsider the planned cuts.

Perhaps most interesting is the creation of the Police Investigation and Review Commissioner. This body is a successor to the Police Complaints Commissioner for Scotland (“PCCS”) and will have expanded powers to investigate

complaints, serious incidents and criminal offences involving the police and police officers. The aim is to give the Commissioner powers similar to those of the Independent Police Complaints Commission in England and Wales, in order to ensure more effective regulation of the police in Scotland. The Commissioner will have a far-reaching power to “investigate any relevant police matter where the Commissioner considers that it would be in the public interest to do so”. This remit goes far beyond the existing powers of the PCCS.

Fire reform

The Act also creates a single fire service - the Scottish Fire and Rescue Service (“the Fire Service”). The proposed reforms for the Fire Service largely mirror those proposed for the Police Force, including the imposition of obligations to plan and provide for local plans. As with the Police Force, one of the main aims of the proposed reform is to introduce direct scrutiny of service provision at both local and national level.

Although reform of the blue light services has been criticised as (and no doubt is) a cost cutting measure, it is clear that the Act also looks to extend public scrutiny of both the police and fire service in Scotland.

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Niall McLeanSenior Solicitor0131 656 0281niall.mclean@brodies.com

The Future of Right to Buy in Scotland - A ConsultationThis consultation seeks views on proposals to further reform the right to buy in Scotland. There are two main policy proposals - either to move tenants with preserved right to buy onto modernised terms, or to end all right to buy entitlements. Click here to access the consultation paper.

Responses are due by 30 August 2012, and can be made by sending a completed Respondent Information Form to rtbconsultation@scotland.gsi.gov.uk.

A Scotland for Children: A Consultation on the Children and Young People Bill

The stated aim of this Bill is to improve of availability of early learning and childcare services by increasing the funded annual provision from 475 hours pre-school education for three and four year olds to a minimum annual provision of 600 hours of early learning, and childcare for three and four year olds and looked-after two year olds. The consultation paper is available by clicking here.

Responses are due by 25 September 2012, and can be made by sending a Respondent Information Form to childrenslegislation@scotland.gsi.gov.uk.

A Consultation on the Creation of a Forum for Adult Survivors of Childhood Abuse in Residential Care

The Scottish Government proposes to develop legislation to set up a National Confidential Forum. It is proposed that the National Confidential Forum will give adult survivors who were abused in residential care as children the opportunity to describe their experiences. Click here for the consultation paper.

The deadline for receipt of views on the Government's proposals is 12 October 2012, and these can be expressed by completing a Respondent Information Form and sending it to julie.muir@scotland.gsi.gov.uk.

Current Consultations

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Current Bills

Social Care (Self-directed Support) (Scotland) Bill

This Executive Bill was introduced by Nicola Sturgeon MSP, Deputy First Minister, on 29 February 2012. The policy objective behind the Act is to enable local authorities to provide support to certain carers and to make provision about the way in which certain social care services are provided by local authorities.

It is currently at Stage 1, and the Subordinate Legislation Committee Report on the Act can be found by clicking here.

Local Government Finance (Unoccupied Properties etc.) (Scotland) Bill

This Executive Bill was introduced by Alex Neil MSP on 26 March 2012 and can be found by clicking here.

Currently at Stage 1 before the Local Government and Regeneration Committee, the Act will amend the law regarding non-domestic rates and council tax in respect of unoccupied properties. The Act also repeals provi-sions that allow grants to be made to local authorities in order to allow them to balance their housing revenue accounts.