Who Watches the Watchdogs?
Scotland’s Information Commission is doing a power of work to keep Government accountable. But there is a vulnerability in the system where the Government may try to defund organisations that become too effective at their job.
Almost buried under other political scandals afflicting the Scottish Government and the SNP right now was the news that the Government was found in contempt of court in a case involving the Scottish Information Commission.
The details of the case aren’t particularly relevant to this article though they are part of one of those other scandals. It involved an FOI request to release the legal advice given to the Scottish Government relating to an ethics inquiry into Nicola Sturgeon after an accusation that she breached rules during the investigation into Alex Salmond. While Sturgeon was cleared of wrongdoing following that investigation, a Freedom of Information request to reveal the advice was upheld as valid and the Government was ordered in November 2025 to release the files by January 15th 2026.
The Government failed to do so and the Information Commissioner began legal proceedings over the matter while extending a further deadline of January 22nd. The Government did release the files more than a month after the extended deadline but this month the court found that the delay was deliberate (rather than merely a symptom of the size and complexity of the files as the Government claimed) and disregarding both the Commissioner and the courts amounted to contempt.
And so the Scottish Government now has a criminal record for contempt of court. Not that it particular matters in any real sense as the punishment levied was merely an admonishment (the lightest sentence in Scots Law and really just a formal and legal version of a stern talking to) and an order to pay the Information Commission’s legal costs (given that the Commission is entirely funded by the Scottish Government this just means the same public money going to lawyers, just via a different accounting line).
This is the first time that any Scottish Government has been found in contempt like this and it’s certainly the most serious breach of information regulations that I can find but it’s hardly the first. Both the current Information Commissioner David Hamilton and his immediate predecessor Daren Fitzhenry have been scathing about the Government’s approach to Freedom of Information.
It’s not even the first time John Swinney has transgressed the lines – in 2018, Fitzhenry published an “intervention report” warning about Ministers, including Swinney, deliberately obstructing the FOI process by treating requests from journalists in a different manner from those submitted by the general public, resulting in more rejections and delays to responses if a journalist was identified as making the request. By 2023 as Fitzhenry was passing over to his successor, the final progress report into the Government’s reforms to this behaviour were noted as inadequate with the report saying:
“The Commissioner anticipated that this report would announce the successful conclusion of this intervention, but, unfortunately, the Scottish Government’s improvement activity has not reached a point where this work can be appropriately concluded.”
I have nothing but admiration for Hamilton and Fitzhenry. It’s a difficult job holding Government to account. It’s harder still within the context of the “Commissioner Landscape” that Scotland is in. Previous Governments have been farming out a lot of roles to Commissioners over the years and the varying statuses of each of them has made things extremely messy.
Some positions, like the Information Commissioner, have extremely well defined roles and significant powers – as evidenced by the contempt verdict – but others appear to be little more than purely advisory and have little recourse when the Government decides to ignore the advice.
=Others still chafe under the pressure of making sure that the advice they give to Government is the advice that they already want to hear (in 2023, the then Children’s Commissioner Bruce Adamson only gave a furious rebuke towards the failings of Nicola Sturgeon’s Government to properly embed human rights legislation a week before he left the office, though it’s noteworthy that his successor Nicola Killean is publicly warning this week of the Swinney Government’s failure to ensure that homeless children are placed in safe temporary accommodation).
There was also an identified risk of Commissioners being set up in response to political events such as the downgrading or removal of Ministerial responsibilities – hence the calls for roles such as a Commissioner for Older People, which we supported on the merits of the case for the role even though it added to the broader landscape problem.
In 2024, Common Weal responded to a Scottish Government consultation on reforming this landscape essentially by calling for a standardisation of the role of Commissioners and to make it far more clear who they report to within the Scottish governance structure. Commissioners shouldn’t be seen as merely advisors to Ministers or as a second-best alternative to them but should be seen as the right arm of Parliament (not Government) in holding Government to account.
This principle is, of course, complicated by the realities of politics. For a start, while it is indeed Parliament (not Government) who approves of appointments to the top jobs in a Commission (technically they are appointed by the King, on the nomination by Parliament but with the understanding that the King could appoint anyone they like but promise not to, because monarchies remain a ridiculous way to run a country), it is Government who decides the budget for the Commission. And herein lies the risk in a time where Governments keep being told what to do by people they control the purse strings of.
A few years ago, Audit Scotland started producing more and more critical reports of Government spending only to find that their budget was slashed in 2022. It’s not hard to see how a Government that is constantly being reminded that its projects are late and over budget might prefer for those reports to go away and if the problem can’t be solved, they could simply defund the messenger.
There’s no evidence of this happening at the Information Commission at the moment – their latest accounts show an increase in their operations over the previous year – though it’s worth noting that the Commissioner has already warned that the time spent forcing the Government to comply with the law is eating too much of their resources. I worry that between this new contempt judgement and a stated objective of the current Government to cut the public sector it might be that this office is one that is ordered to accept its (not so) “fair share” of those cuts.
This would obviously be deleterious for both Parliament, the public and our very democracy. Voters cannot hold Government to account if we can’t see what they are doing and so Freedom of Information is, in a very real sense, the foundation stone of our democracy.
All parties in Parliament have a vested interest in ensuring that all Governments are maximally transparent (they can’t hold the Government to account if they can’t see what’s happening either) but I’m going to single out just one. Fresh from their victory (tinged by party tribalism as it was) in securing an independent inquiry of political party finances, I’m going to lay the job of protecting the Information Commission at the door of the Scottish Greens in particular. It’s well within their remit of party policy but more than that, as a party with a history of supporting Government budgets I would say that failing to protect the functions of vital watchdogs from potential cuts would mean complicity in those cuts.
Even this is only a temporary patch on the problem though. Scotland would only be one hostile majority government away from being able push through cuts even despite a united opposition. This is why Common Weal advocates for a Citizens’ Assembly to oversee our elected chamber and we suggest that Commissions and Commissioners should be tasked with submitting their desired budgets to the Assembly to be approved before they are passed to Government to include in the national budget. This would apply a level of safeguarding and scrutiny to the whole process to make sure both that demands are not excessive and that any changes in funding from the Government are driven by need and not by political advantage.
This isn’t the first time I’ve written about the need for transparent government. It won’t be the last. The moment we stop being able to see what Government is doing is the moment they stop caring about being seen when doing things. This goes for when the regulations aren’t good enough. This goes for when the regulations aren’t followed and no-one holds them to account. We’re lucky that this time both worked. We need to be lucky every time though. A Government that decides it wants to pull down the curtain of secrecy only needs to be lucky once.
