Coronavirus (Scotland) Bill contains a threat to democratic scrutiny – Conor Matchett
The Scottish Government is no stranger to questions over its ability and reluctance to properly engage in transparency, yet the mask has further slipped following the passing of the Coronavirus (Scotland) Bill.
Transparency is the one thing feared most by all administrations and public bodies, no matter their size or position.
Full disclosure of the ins and outs of how taxpayers’ own organisations spend their money or make their decisions seems to be considered by some as the first step towards anarchy in the public sector.
Excuses against transparency are often trotted out along the same general line – it hinders 'full and frank discussions', or is prejudicial to the commercial interests of a public body, or would prejudice the undertakings of an arm of a public body.
Transparency is, by this argument, something to be feared in case it exposes the dirty underbelly of bureaucracy.
The Freedom of Information (FoI) Act, which should still be seen today as an unprecedented shift in power away from government and towards the public in the battle for transparency, is nevertheless regularly abused by those who should abide by it most closely.
Dangerous and damaging
The Scottish Government has form on this matter, namely in 2017 when the Scottish Information Commissioner Daren Fitzhenry criticised it for failings around delaying responses to requests from members of the public, including journalists.
Criticism from journalists led to the matter being debated in Holyrood and a year-long investigation into the Scottish Government's performance around FoI responses.
Despite improvement, the Government has clearly forgotten its lesson, instead deciding to hide dangerous and damaging changes to FoI legislation behind the wall of necessary rule changes to help battle the coronavirus outbreak.
While much of the Coronavirus (Scotland) Bill makes sense and is proportionate, the changes to FoI law are potentially extremely damaging at a time where transparency and confidence in government decision-making should be paramount.
Instead, the Scottish Government has decided it knows better than the UK Government and has extended the response deadline to 60 days with a potential further extension of 40 days.
If a request is refused, an internal review of the decision can be requested, but that same timeframe for a response kicks in, meaning requests for information including statistics, minutes of meetings and email correspondence could take 10 months before receiving an answer or be able to take the decision to the Scottish Information Commissioner.
The impact of the decision has already shown itself to be damaging to confidence in the Government.
Earlier this month, the Care Inspectorate was rightly criticised for refusing to release the number of Covid-19 deaths in care homes in Scotland, instead deciding to treat questions from the BBC as an FoI request, meaning the BBC would have had to wait at least three months for an answer.
The prospect of not knowing how many of our elderly relatives are dying in care homes during the peak of the coronavirus outbreak with us instead having to wait until August at the earliest to know the full scale of the disease's impact was rightly derided.
After widespread criticism, the Scottish Government announced the figures would regularly be made public by the National Records of Scotland. However, it was a sign that the change in legislation from Holyrood will be taken advantage of by public bodies and authorities.
Already, requests for details of golden goodbyes for high-paid public officials and review requests have been pushed further into 2020, moves which will let down the public, who are dependent on openness and honesty in decision making, and further erode trust.
There is no excuse for this change given the public sector protection from the ongoing crisis, and there is no defence in claiming the work cannot be done from home by civil servants.
Even an odd week's delay in receiving an answer would not be noticed given that response deadlines have been regularly flouted for years.
Instead, the change in legislation is an unashamed attempt by the Scottish Government to dodge legitimate and legally enforceable scrutiny which seems more concerned with ensuring its decision-making appears right than allowing the people to decide whether it is, in fact, correct themselves.
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