Transparency means keeping politicians where we can see them
Both the Scottish and UK Governments have been pushing the limits of acceptability again when it comes to information transparency.
The Scottish Government is riding the edge of transparency legislation to the point not just of bending the ethical and moral duties of transparency but is being threatened with court action for non-compliance with an order to release information subject to a Freedom of Information Request regarding an inquiry into whether or not Nicola Sturgeon broke the ministerial code. By the time you read this article, we’ll know if the Government has met the extension it was given to the deadline it initially missed on January 15th and whether they have or haven’t produced the material. [Edit: The extended deadline was missed and the Information Commissioner has initiated legal proceedings.]
I’m not particularly interested in writing here about the minutiae of the case itself (others certainly have done so) but I want to instead focus on the breach of FOI legislation involved here because it goes beyond the case itself. It cuts to the heart of the Government’s attitude towards transparency in general and it’s not the first time that John Swinney has been caught up in this kind of thing.
In 2018, then Deputy First Minister Swinney was found to have unlawfully interfered with FOI requests, especially those submitted by journalists. During the Covid lockdowns, the Government made an audacious attempt to try to suspend FOI legislation entirely. And, of course, they were later pulled up for their use of communications platforms like WhatsApp where Government business was conducted in a way that couldn’t be easily recorded and could be easily deleted.
Not that the UK Government is a shining beacon here. Just a few years ago, two government departments were reprimanded for failing to supply information subject to FOI requests. There is also a story breaking this week that the UK Government is being lobbied on a plan to roll out a “Panopticon” whereby all residents in the UK would be monitored almost completely and in almost real time. Megan has more about this in her article this week but from a transparency point of view I simply say “You first”.
It’s funny how keen politicians are to roll out total surveillance but any attempts at ‘sousveillance’ – from filming cops beating up protesters to investigating politicians taking bribes or other dodgy payments – must be stamped out. Indeed, it’s precisely that attitude that drives me and Common Weal in our campaign for transparency.
With regards to the story at the top, Labour leader Anas Sarwar has apparently pledged that if the information has not been released by the time he is First Minister then he’ll do it. Which sounds like a bold claim but really all he’s saying is that he promises to comply with the law. As my wife likes to say “No cookies for what you should be doing anyway.”
Common Weal has a firm view when it comes to Freedom of Information. Democracy simply doesn’t function in the dark. If you cannot see what the Government is doing, who it is talking to and what it is doing with your data, then we – as voters – cannot hold them accountable for their actions.
“Under a Glass Wall Government, we wouldn’t need to ask the magic question to get an FOI response. We could simply browse the database of all Government emails and scan them for interesting names.”
There are currently two bits of legislation moving through Parliament at the moment that Common Weal has been supporting. The first is a scrap that remains from the wreckage of the National Care Service Bill that would extend the right of Freedom of Information to private care homes that provide services for public authorities. This happened because Common Weal and others pointed out that in this sector in particular, there was a disparity in how transparent the spending of public money was.
If a Local Authority ran its own care home (as many do and many more used to in the past) then the care home was subject to FOI but if they privatised that care home – even if they remained the sole provider of clients to that home – then it was not longer subject to the same scrutiny. In that way, privatisation could be used to shield the public sector from scrutiny.
This said, we used the care home example as just that – one example – and so we also support Labour MSP Katy Clark’s Member’s Bill that would extend FOI to all uses of public money, everywhere in the private sector. Businesses will almost certainly complain about the duties placed upon them in this regard but our response is that this should be considered the price to be paid if a private business wants to accept public money.
We also go further though. Under FOI legislation in Scotland there is a principle known as “proactive publication” which states that the Government should, as a matter of policy, publish as much as it can even though no FOI request has been made. Clark’s Bill and our campaigning has pointed out that this principle is too often ignored as there is no penalty for doing so. We would see that principle placed on a statutory footing.
We call this the ‘Glass Wall’ principle of transparency. Government should have almost nowhere to hide information that could and should be made public. Essentially, any information that could be published under a properly worded FOI should simply be published. We shouldn’t need to submit FOIs at all to release information. This includes quite a surprising amount of material that you might not think could be published but absolutely should be – such as emails to and from Ministers.
I know this because I, myself, have been the subject of an FOI request to the Scottish Government. Shortly after I made a claim in public that I had approached Angus Robertson’s office to lend Common Weal’s help towards their announcement programme of ‘Independence White Papers’ and that the Government declined that offer, someone submitted an FOI to check my claim. I’m always happy to have written proof that I’m not talking nonsense at least some of the time.
This means that it would be perfectly possible for you to submit an FOI to ask for emails between Ministers and any named person. Donald Trump? Vladimir Putin? The CEO of one megacorporation or another? The King of Denmark’s third cousin? Maybe they have been talking to these people. Maybe they haven’t. The problem is, that we don’t know if they have or haven’t because no-one has thought to ask the question. Under a Glass Wall Government, we wouldn’t need to ask the magic question to get an FOI response. We could simply browse the database of all Government emails and scan them for interesting names.
Rather amusingly, the FOI release about me also included an FOI submission I had made to find out how many FOI releases the Government was withholding from the public record despite publishing them in a private response to the requester. This is another major issue with the Scottish FOI process because it means that even IF someone conceives of the right question to get to a bit of information, it doesn’t automatically mean that anyone apart from them will get to see it. I wrote about that issue in more detail at the time here.
Governments hate giving up the information that is already yours by statutory right about as much as they love grabbing your information for their own purposes but this is entirely antithetical to the way that democracy must work. Democracy quite literally dies in the dark. The legislation moving through Parliament at the moment will take Scotland quite a long way towards Common Weal’s ideals and so even with the compressed timetable before the election it is vital that Clark’s Bill in particular isn’t allowed to time out and fall. Please write to your MSP and tell them you want to see this Bill passed before the end of the Parliament.
