For citizens in a modern democratic society, knowledge and the access to it is a necessity to enable us to keep the powerful in check. It is curious, then, that among the initiatives most regretted by former Prime Minister Tony Blair, was the introduction of freedom of information (“FOI”) legislation in the first term of the last Labour Government.
The passage of the UK-wide Freedom of Information Act 2000 was followed by the Freedom of Information (Scotland) Act 2002 (“FOISA”) in respect of specifically Scottish public bodies. Both Acts came into force on 1 January 2005 and, inter alia, give a right of access to information held by public authorities.
As Blair himself recognised in his speech to the Campaign for Freedom of Information in 1996, freedom of information is a cornerstone of modern democracy and any government’s attitude towards sharing information with the people reveals much about how it views power and its own relationship with the people who elected it. Perhaps, then, Blair’s volte-face on FOI after a decade in power is testament to its fundamental importance and effectiveness.
Given FOI’s central role, it seems reasonable to use the performance of public authorities in meeting their FOI obligations as a litmus test for the overall health of our democracy. In the Scottish context, specifically in relation to the Scottish Government, the test results are not good.
The Scottish Information Commissioner (the “Commissioner”), an office which was set up by FOISA to police FOI in Scotland, recently published its Scottish Government Intervention Progress Report. The intervention was launched in November 2017 and was initiated in response to concerns raised in the Scottish Parliament and by journalists about various elements of the Scottish Government’s practice in relation to the handling of FOI requests.
The report lays bare a litany of failings in FOI request-handling by the Scottish Government. These include significantly falling short of on-time performance levels for both FOI requests and reviews; an increase in average response times for FOI requests and reviews since the Commissioner’s last report, extending significantly beyond the statutory maximum of 20 working days; and evidence of a failure to deal with a substantial backlog of historic requests.[1]
More worryingly, the report also notes a pattern of significantly increased average response times for FOI requests and reviews marked as “sensitive”, which are subject to review by a special adviser and ministerial approval. Moreover, in such cases, given the widespread failures to comply with internal records management requirements, the report notes that it is often impossible to discern where the decision-making role rests. This gives rise to a suspicion, whether accurate or not, that sensitive cases are being decided by political staff rather than by impartial officials within the Scottish Government.[2]
In addition, the Commissioner found evidence of the misuse of the exemptions detailed in FOISA. For example, there were failures to consider the public interest test when applying the “prejudice to the effective conduct of public affairs exemption” under s. 30 of FOISA. These failures were widespread as was a blanket application of the s. 30 exemption in relation to certain categories of document.[3]
From reading the report, one might conclude that the Scottish Government is disdainful of sharing information with the people it governs. Without fear of contradiction, it is bad enough that the Commissioner felt the need to intervene in the first place in 2017. But not only that, the report notes that performance on many key measures is in fact continuing to deteriorate year-on-year.[4]
What does this attitude reveal about the Scottish Government’s view of power itself and the nature of the relationship between government and the people? Well for one it proves that the guards can’t be trusted to guard themselves, and accountability mechanisms must be strengthened to ensure the utmost transparency in public life and the free flow of information to citizens to preserve the health of our democracy.
To that end, the proposed Members’ Bill which was out for consultation this year on reforming FOI in Scotland and sponsored by Katy Clark MSP should be welcomed. The proposals include amending the general entitlement under s. 1 of FOISA to ensure that the clock counting down the 20-working-day deadline to provide an FOI response is paused when a public authority asks a requester for further information. This is in contrast with the current position that resets the clock to zero when further information is sought. This could help to significantly speed up the FOI process.[5]
There are also proposals to reduce the maximum response deadline of 20 working days – the consultation document on the Bill also notes that the 20-day period seems to be used as the routine response time rather than the maximum. Clark’s Bill also suggests that data routinely compiled by public authorities, such as statistical information, for example, should be published by default and a duty to publish information should be introduced, which may dispense with the need to make some FOI requests in the first place.[6]
However, while important, strengthening rights to access information is not sufficient on its own. A far broader evaluation of the way in which the Scottish Government is held to account is needed. As the principal representative organ to which the Scottish Government is answerable, the Scottish Parliament itself needs far-reaching reform.
One glaring issue is the lack of capacity and resources Holyrood has to adequately perform its role of scrutinising the work of the executive. The trend over the course of the last decade has been a steady stream of new devolved competencies flowing from Westminster north of border, including in relation to taxation and social security.
Reflecting this increase in responsibility, between 2016-17 and 2022-23, the Scottish Government’s operating budget increased by £301 million, or around 81 per cent. In contrast, the Scottish Parliament’s budget only increased by £12.3 million, or around 28 per cent. From the end of March 2013 to the end of March 2021, there was an approximately 52 per cent increase in the number of full-time equivalent, directly-employed staff working for the Scottish Government. In contrast, staffing levels in the Parliament only rose by around 24 per cent.[7]
Such large discrepancies in capacity have a real-world impact in terms of perpetuating a power imbalance between government and the people’s representatives in the Parliament. It also has direct effects on staffing levels and resources in teams such as the Non-Government Bills Unit, which thereby limits the opportunity for non-government business to be taken forward in the Parliament. The capacity and resource imbalance between the Scottish Government and the Parliament must be levelled up, to borrow a phrase, to recalibrate the relationship between executive and Parliament.
Another accountability gap in Holyrood stems from the unicameral model adopted for the Parliament. The lack of a second chamber was supposed to be offset by the establishment of a powerful nexus of apolitical committees charged with a range of functions and duties including holding the Scottish Government to account and taking the lead in scrutinising legislation. Many of the committees were also given permanent status to reinforce their power.
However, in practice the committees have been widely criticised as failing to live up to their noble founding ideals and as being excessively partisan, with MSPs on the committees whipped to ensure party discipline. The parties control committee membership which inevitably undermines the independence of the system, as well as potentially losing out on the expertise of backbench MSPs in certain policy areas, with the party managers tending to favour the appointment of party loyalists as opposed to subject matter specialists. This mirrors failings in the Westminster system highlighted in a recent Constitution Society report by Tabitha Troughton.
When this capture of the committee ecosystem is combined with the ballooning number of MSPs appointed as ministers (and therefore bound by collective responsibility), the space for genuine debate and independent scrutiny and criticism of the Scottish Government appears to be squeezed into oblivion. At the very least, the committee convenors should now be elected by a secret ballot of all MSPs to ensure a modicum of independence, as advocated by former Presiding Officer Tricia Marwick.[8]
Linked to the issue of the impotence of the committees is the issue of the effectiveness of MSPs themselves. The Scotland Act 1998 limits MSPs in their ability to speak out in Holyrood without fear or favour in its failure to bestow upon Members the same parliamentary privilege enjoyed at Westminster. While the 1998 Act offers some protection, MSPs do not enjoy full parliamentary privilege. [9] Introducing parliamentary privilege together with whistleblowing protection for MSPs to facilitate public interest disclosure could go some way to empowering our elected representatives in Holyrood and rebalancing the scales between the Scottish Government and the people.
These reforms, together with a reformed FOI regime and greater resources for the Scottish Parliament, could guard our democracy and help the devolution settlement to live up to the noble ambitions of the Scottish Constitutional Convention for greater accountability, accessibility, openness, and responsiveness in government. It’s not only Scotland’s claim, it’s Scotland’s right.
Seán Patrick Griffin.
Seán is a Scottish solicitor with experience practising in constitutional law and human rights. He has written widely on constitutional reform and has been published in a number of books and journals on the subject.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] Scottish Information Commissioner, Scottish Government Intervention Progress Report, 12 October 2023, p. 39
[2] Ibid., p. 32
[3] Ibid., p. 28
[4] Ibid., pp. 15-17. While some progress has been made in some areas, such as clearing the backlog of historic requests, on other measures, such as average response times, the results have declined since 2022.
[5] Consultation on a proposed Freedom of Information Reform (Scotland) Bill by Katy Clark MSP, November 2022, p. 12
[6] Ibid., p. 21
[7] Stronger Holyrood, Scottish Labour, August 2022, https://scottishlabour.org.uk/wp-content/uploads/2022/10/Stronger_Holyrood.pdf
[8] https://archive2021.parliament.scot/newsandmediacentre/88284.aspx
[9] Absolute privilege is granted in relation to defamatory statements and qualified privilege in relation to contempt of court under ss. 41-42 of the 1998 Act.