What are they hiding?

Politics Notebook #4: The Scottish Government refuses to update freedom of information laws.

Image by Steve Buissinne from Pixabay.

Buried on the Scottish Government’s website on Tuesday was ministers’ response to a consultation.

Nothing eye-catching about that. Consultations are ten-a-penny at Holyrood. This one was different, though, because it was about freedom of information (FOI).

No, wait. Come back. This’ll only take five minutes.

FOI isn’t the sexiest subject in politics but it’s one of the most important. As a point of principle, it goes to the very heart of a government’s commitment (or otherwise) to openness and scrutiny. On a practical level, it’s how journalists find out stuff they otherwise wouldn’t and present it to you, who otherwise wouldn’t get to know about it.

One of the key considerations of this particular consultation was whether FOI laws needed to be expanded via primary legislation. That is, widening their scope in meaningful ways rather than just tinkering around the edges.

Transparency campaigners and opposition politicians have been trying to convince the SNP government to extend FOI to bodies which deliver public services but are not necessarily owned by the state.

Take the proposed National Care Service, under the aegis of which private and third sector organisations would provide care services funded by and in accordance with guidelines set out by the Scottish Government.

But unlike the NHS, these outside bodies are not normally covered by FOI laws.

Let’s say a journalist wanted to find out how many times patients have been given the wrong medication while in hospital. He or she could submit an FOI enquiry to each of the health boards, which are legally required to disclose information they hold that doesn’t meet any of the exemptions.

Now let’s say the same journalist wanted to find out the same information but this time in private care homes. Things get much, much trickier.

So unless FOI laws are applied to the National Care Service, it will be nigh on impossible for members of the public or journalists to access information about what goes on behind closed doors, how services are provided to the public, or how money is spent.

But this isn’t only about care services. Those are just in the news right now. It’s about a whole gamut of organisations and range of services.

To the surprise of exactly no one, in their dig-deep-if-you-want-to-find-it response, SNP ministers said (my emphasis):

The Scottish Government considers that the access to information rights regime remains robust in its fundamentals, and therefore is not persuaded that it is necessary to make changes to primary legislation in the current Parliament. Nevertheless, the Scottish Government remains open to making modifications to develop and strengthen the regime in the future.

Parliamentary business minister George Adam said bringing the care sector under FOI legislation would be ‘consistent’ with the National Care Service Bill but would only happen after the Bill is passed and following consultation with the sector.

Which means we might — eventually — get some openness and transparency in the National Care Service but not in other bodies. That isn’t much of a trade-off. It will mean that the public and journalists continue to be kept in the dark about how taxpayers’ money is spent and how public services are delivered.

There is an argument that FOI laws create a lot of work and expense for any institution covered by them. And they do, but it’s necessary work and necessary expense. Because FOI is not just legislation, it’s about a fundamental principle. Either the public has a right to know or it doesn’t.

If we want government to be fully transparent and accountable, it is not enough that FOI applies only to some institutions. It must apply to all bodies that take public money to deliver public services.

Labour’s Katy Clark took issue with the government’s FOI position, saying:

This is weak, timid and far from what the public are calling for. It's utterly undemocratic that so many publicly funded organisations evade scrutiny because of their ownership.

Meanwhile, the Lib Dems’ Liam McArthur said:

Meaningful reform is being stopped dead in its tracks because ministers don't want to close the loopholes they have been using to dodge scrutiny.

Both very fair criticisms.

They might not realise it, but it is in ministers’ interests to broaden the scope of FOI laws. In declining to do so, they are simply storing up accountability crises for the future. Not only that but engendering more cynicism and suspicion towards the Scottish Government and its activities.

A government that earns a reputation for secrecy — this one has more than earned it — forfeits popular trust and prompts the voters to assume the very worst. When the public is denied the right to know what is going on behind closed doors, there is one question that will spring immediately to most people’s minds: What are they hiding?

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