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It is helpful that that has been put on the record.

On the provisions on the law of retention, I note that proposed new section 21A(4) states that the effects of retention

“must not be clearly disproportionate to the effects of the breach”

of contract. Can you clarify exactly what “clearly disproportionate” means? Why is that going to be included in the bill?

Proposed new section 21D(b) gives courts the power

“to refuse the exercise of … retention where that … would be inequitable.”

Can you explain what is meant by that and what you envisage will be covered by that provision?

Good morning. What is your understanding of the main benefits of the new rules on remedies for breach of contract in part 2?

Obviously, if you want to write to us further on that, that will be very helpful.

I was going to come on to that in my next question, but if you want to deal with those issues as a whole, that is fine.

That would be fine. Your position, then, is that this is a codification of current law. There is no intention to change the law—this simply codifies what is already there.

The only new designations that would automatically take place as a result of the bill would be those under section 3, on publicly owned companies. People can already make FOI requests about those companies, but any requests would have to be made to the public body that owned the company in question. We hope that there will be savings, because it will no longer be necessary to go to the parent body, which would otherwise have to retrieve the information from the publicly owned body and then provide it to the member of the public or whoever made the FOI request. In drafting the financial memorandum, we looked at those organisations. We costed in that there may be a cost for the publicly owned body, but we hope that that cost would be transferred from the organisation that owns it.

The evidence that the committee has heard and, indeed, the evidence that was put before me is that there is a very wide range of views and evidence on the cost of an FOI request. The amount that different organisations spend varies tremendously. Sometimes, the cost is said to be related to the efficiency of the organisation’s systems and the amount of resource that it decides to put into FOI compliance.

The policy intention behind the bill is to reduce cost, and we hope that that will happen through standardisation and the codes of practice. However, we recognise that when there is a designation of a new body—it could be a very large body—there will be costs for that body, and we have outlined those in the financial memorandum.

In general, those costs will not be borne directly by the Scottish Government; they will be borne by the new body. That body might be a multinational company, a third sector organisation or a charity. It could also be a private body—for example, it could be a privately owned care home, if the Parliament decided to go down that path. However, all those matters will be looked at by the Parliament when the Scottish ministers come forward with a recommendation for a designation or, indeed, if the Parliament decides to use the designation mechanism that is proposed in the bill.

That is a bigger question. Why Governments do not always act as quickly as they could is not a party-political question. I suppose that they listen to stakeholders from all sides and always face pressures not to act as well as pressures to act. It is difficult to explain why decisions are taken not to act, but I presume that it is because matters are complex.

You have heard evidence about stock transfers. When council houses moved to housing associations and other bodies, there was a loss of rights and it took 13 years for those to be brought back. There has been a loss of rights in many sectors, such as when there was outsourcing in the justice sector—there is no sign of those services coming back to being run by the Scottish Government. Rights have been lost and political decisions have not been made to maintain those after services have been transferred.

As you have heard in evidence, ScotRail is now back in public ownership, because of which we have FOI rights again. Designation does not seem to have been significantly onerous for that body. The housing associations and other bodies that are now required to comply with the legislation receive only a relatively small number of requests.

It would strengthen the commissioner’s position and help to drive the bill’s intention, which is to ensure transparency, accountability and openness. Part of the reason is to ensure better use of the public pound and better public policy.

I fully recognise those points, which would be a matter for the committee system. Presumably, something would have to be seen by the committees as a political priority. In the aftermath of Covid, care homes might have been considered a political priority and an area that a parliamentary committee would identify to launch an inquiry into, whereas that is far less likely to happen for areas on which there is perhaps less public attention.

My proposal is to make available an additional mechanism, which would strengthen the role of the Parliament to hold the Government to account.