Lawfare must not be allowed to suppress scrutiny

When the behaviour of some executive officers of an organisation are absolutely damned in a report carrier out by a respected independent auditor, you might imagine there would be some legal warnings involved. What you probably wouldn't imagine was that those legal warnings would be issued to the people whose responsibility it is to hold the officials to account.

A number of weeks ago the Common Weal Daily Briefing covered the case. As a reminder, the Audit Commission found that lucrative exit packages agreed by senior staff to reward themselves were not handled in line with the principles of selflessness, integrity, objectivity, accountability, openness, honesty or good leadership, and nor was there "robust and transparent" record keeping.

That briefing argued that it takes some interpretation of those facts to also conclude that there was no misconduct. That briefing questioned how failing to act with integrity, honesty and accountability is not a cause for some form of active response. This became another case of 'no action will be taken against people who act without integrity but lessons will be learned for the future'.

Those lessons appear to have been learned; if you don't successfully cover up your actions and suppress scrutiny, up your efforts. Thus it is that the elected councillors who make up Glasgow City Council have just received legal warnings on behalf of the officials. The warnings make clear that if the councillors ask too many questions in scrutinising this affair, they may end up in court.

This is very clearly the wrong way round. When democracy was established in Britain the concept of 'parliamentary privilege' was built in. It basically allows for those who are elected to run the country to make mistakes without consequence so that they are never inhibited from the pursuit of the truth.

On the whole, parliamentary privilege has been used responsibly by politicians. It has certainly been an important tool in uncovering corruption and challenging the powerful or protected. This power was of course withheld from Holyrood and has never applied in local government. This explicitly tips the balance in favour of those who can afford litigation.

That is not how democracy is supposed to work. It is not a system of one lawyer, one vote and it is not meant to be a system of lawfare where whomever can afford to sustain the legal challenges for long enough wins.

Events in Glasgow City Council mirror other public sector scandals. For example, the dynamics are similar to what has happened in Historic Environment Scotland or the Water Industry Commission Scotland. Both involved senior officials operating the public bodies in ways which enriched them while questionable behaviours were covered up and concerns were not taken seriously.

Then again, there is a good argument that even public bodies which aren't involved in scandals involving individual behaviour show similar patterns – the apparently unwillingness of CMal to listen to the voices of the islanders they serve is a clear echo of what is happening in Glasgow.

This has become a fundamental drain on public resources, public integrity and the good will of the public itself. Across the western world people are gnashing their teeth and asking why citizens are losing confidence in democracy. This is why the public is losing confidence in democracy – it barely feels like democracy.

The key actors are not electorally accountable and the electorally accountable politicians who are supposed to hold the officials accountable are intentionally put in a subordinate position. It has been a complaint of many in local government for a long time that the Chief Executive of a local authority has unlimited access to council lawyers but councillors don't.

Legal letters probably should have been issued here – to the officials being investigated, warning them that any attempts to interfere with the democratic scrutiny of their behaviours and actions (all funded from the public purse) will be met with the overwhelming legal power available to public bodies in Scotland.

Or, to put it another way, from health boards to obscure quangos, the constantly rising public sector legal bill in Scotland ought to be protecting the public from the actions of paid officials, not the other way round.