Harbour deal suggests loopholes more powerful than transparency rules

There are democratic protections used in Scottish politics which are not as strong as they sound. As we can see from coverage of the public purchase of Ardrossan Harbour, 'presumption against' is one of them.

Ardrossan Harbour is being bought by the Government but the precise details of the sale including its sale price are being kept secret as a result of a clause in the contract. The narrative that is being presented is that there is always a presumption for the public to know how public money is being used but in this case unfortunately there is a legal prohibition to doing so.

That narrative is false. The key element to look at here is that the apparent prohibition on publication of costs is a clause in the sale contract. That is agreed between the seller (Peel Ports) and the purchaser (the public sector – there remains uncertainty about which costs will ultimately be picked up by which agency).

That means that the Scottish Government has agreed to make its actions confidential. It is the Scottish Government's choice to prevent this information emerging, not an act of god. It has written and signed a contract which provides itself immunity from scrutiny.

But that is not the only aspect of the narrative which may turn out to be false. Is there really a presumption against confidentiality in the use of public money, or is there an assumption that it will generally be unnecessary? These are not the same thing.

If you have 100 instances of spending public money and in 95 per cent of those cases there is no need or desire to hide that spending, but in five cases those spending the money have a reason to want it hidden, is 'presumption against' a barrier or a smokescreen? Is it acting to prevent the worst instincts of governments or is it providing narrative cover to disguise and justify those instincts when they emerge in a minority of cases?

There are other aspects about this case which give reason for concern. There appears to have been a significant lack of planning and most observers agree that action on this port should have been taken a long time ago. There also appears to be confusion in government about the current state of the harbour and its resultant liabilities.

This has led to a concerning situation where the Chief Executive of Transport Scotland has refused to sign off the deal as meeting value for money criteria, citing 'significant uncertainties'. The harbour is being bought from the second largest operator of sea ports in Britain, a company which has control over strategic national assets, including 450 square miles of the River Clyde.

In fact Peel Ports is significantly bigger than that and is one of the UK's major property owners. It is also has a very major lobbying operation which has lobbied against the Congestion Charge in Manchester, has an extensive lobbying operation for planning decisions at the local authority level and has regular lobbying contact with the Scottish Government.

It is also owned in a tax haven and has had a number of controversies including an attempt to impose a flat-rate charge of £100 for everyone who sailed on the Clyde and a number of significant community campaigns against the company.

The narrative which should concern us is 'controversial private company which has a stranglehold over key UK transport hubs and substantial lobbying presence persuades Scottish Government to place secrecy clause in contract to buy harbour which has been deemed as not presenting identifiable value for money after serial government failures to act on crucial transport hub'.

But there is a subsequent test; if there is truly a presumption against this practice then there must be a mechanism for overturning this situation. If this secrecy stands then there clearly isn't a reasonable presumption against confidentiality in the use of public money since it is reasonable to assume we should know about this expenditure.

Of course, the Scottish Government's objective may already have been met – even if details do emerge, they will not not emerge before the election. This all raises significant questions about propriety.

Common Weal has come to the conclusion that key transport infrastructure should be controlled by the nation for the nation, not as an opportunity for commercial profits. International transit hubs are surely key to national resilience.

But more straightforwardly, the FoI reform legislation introduced by Katy Clark would have prevented this by making confidentiality clauses illegal. This was voted down by the party in government. At times in Scotland it seems like the purpose of legislation isn't the legislation but the loopholes built into it.