Just because you’re paranoid…

Another week, another FOI stushie.  This one, of course, is the biggie.

Catherine Stihler MEP submitted a Freedom of Information request to the Scottish Government last year seeking publication of any legal advice received relating to an independent Scotland’s membership of the European Union.  Given the importance of the issue to the constitutional debate, it would be reasonable to assume that advice has been sought from legal sources within and without government.  Or so Catherine Stihler thinks.

The Scottish Government?  Well, it says no, hiding behind one of the many excuses in its armoury allowing it to refuse to publish requested information.  Section 18 allowed it to refuse publication because it would not be in the public interest.

In July this year, the Information Commissioner, Rosemary Agnew, disagreed and ordered release of the information.  The Scottish Government has now appealed, eliciting another exasperated response from the Commissioner.

There’s a growing trend where the Scottish Government resists but is eventually made to release information.  Every week, there seems to be another, which is not surprising really, when journalists have cottoned on to them as a tool to dig out a story.  Paul Hutcheon at the Sunday Herald, in particular, seems fond of the device having accounted for over 60% of all requests from journalists or media sources.

Which is not to criticise him.  If information is not being made available publicly, everyone has a right to use Freedom of Information legislation to try and access it, be they a concerned citizen or someone paid to do a job that requires that information.  Journalists are not the only ones to try and sniff out some facts.

But requests being dismissed by the Scottish Government, with the information then having to be dragged out of them following an investigation by the Information Commissioner, seems to have become commonplace.  The cost of such machinations is one thing;  the damage caused to the SNP and its Government is potentially quite another.

The more they try to hide behind its exemptions, the more we come to believe they really do have something to hide.  Governments require trust to operate and this one is in grave danger of squandering theirs.  At the time, the SNP needs it most.

No politician or government likes bad news: it rather spoils the narrative.  But worse is that bad news coming out anyway after vigorous attempts to suppress it.  Especially for a government elected in 2007 and then returned resoundingly on a platform of being different from what had gone before.  Trusted by voters to do different and to behave differently was a factor in the SNP’s election and re-election, something officials and Ministers alike appear to have lost sight of.

It is not good enough for the SNP – of all parties – to point the finger and say we are only doing as the Unionists did when they were in power at Holyrood.  Or to suggest that they are only applying the same standards as Westminster does.  It somewhat confuses the voter, seeking to emulate the very institutions and parties which you have spent decades dismissing and diminishing for their overbearing attitude towards Scotland.

The Scottish Government might have calculated – perhaps rightly – that it can get away with one or two stushies like this.  What is debilitating – to it and to its reputation – is the constant drip feed of requests refused and then forced out of them.  It is the totality of the behaviour rather than the specifics of each and every request which lingers in the memory of the voters.

Yet, the more the government resists, the more the journalists especially will come seeking.  And there are only so many occasions upon which the public are prepared to trust the government’s view of things and dismiss such requests as mischief-making by those who are out to get the SNP and its government. Far better surely, to determine to operate transparently and openly, and pre-empt such requests by voluntarily publishing information which does not necessarily paint the government in the best light. Prebuttal rather than rebuttal.

There’s a curious irony that in its earliest days as a minority administration, the SNP demonstrated that it was a government confident in its own abilities and comfortable in its own skin when it sat atop a shoogly house of cards, but that its resilience has somewhat diminished with majority rule.

How did it come to this?  How has paranoia creeped in and now set in, in the mindset of this Scottish Government?

The referendum has a lot to do with it.  It’s not just on FOI requests that the government is leaning heavily on the side of caution to avoid negative headlines.  Apparently, backbench MSPs are regularly treated to sotto voce warnings about the risks attached of them being seen to be at odds with their government on a particular issue and why it’s important for them not to be seen to be rocking the boat, if they want to be helpful towards securing a yes vote in 2014.

Often, such heavy handedness is deployed in response to the most innocently intentioned and devised questions of government policy, but needless to say, given that these MSPs do not want to do anything to jeopardise the potential success of the cause for which so many have spent their lives campaigning, they acquiesce.  Many a vote is being taken in committee and chamber with misgivings.  And given that there’s two years to go to the vote, it remains to be seen how far the politics and discipline of fear can carry before a major combustion results.

This is not how good government works.  Nor is it the way to gain the trust of the people in what will be the biggest political decision of their lives.

If the SNP Government wants the people of Scotland to trust them enough to vote yes to independence, they need to rediscover the spring in their step of the earliest days of government and put an end to this creeping fog of paranoia, suppression, fear and nervousness.

21 thoughts on “Just because you’re paranoid…

  1. So the Govt refused to release information because it “wasn’t in the public interest”. What does that even mean? Who decides whether or not it would be in our interest? Seems rather presumptious of them.

  2. Longshanker – what I think is that the SNP Government should not be subject to different rules not only to Westminster government but to previous Scottish Governments.

    The current Scottish Government is not some kind of rebel force occupying St Andrews House as part of their struggle against the Empire.

    They are a totally legitimate government elected in a totally democratic way. They have the right to be treated in the same way as both the UK and previous Scottish Governments and they have the right to behave in the same way too.

  3. 1. Has the question been asked, if Scotland are ex Westminster and have to re apply what happens to Endland and the others. Who says that inclusion is automatic.
    2. With our oil, ater and fisheries does an ever weakening EU want to lose Scotland?
    3. Has anyone asked what might happen in an Independent Scotland if it has a referendum vote on beinmg part of Europe?
    4. What right has anyone to ask a Government formulating policyto produce re- agreed policy?
    5. Why are press not charged for every FOI request to not only Scottish Assembly (Parliament, sorry) and Local Government as well, the cost of the PUBLIC purse paying for work journalists should be doing as part of their job is an anathema to the taxpayer – no matter what form of tax. FOI should NOT be available to press.

  4. I would ask of these journalists to try the same tactics on Westminster,just in the balance of things.See if they can get all the information regarding Scotland over the past 50 years brought out into the open,after all they have practised on Hollyrood for a few years now must be able to step up to the premier league now,or would that not suit their political agenda?

  5. The poker player who plays with his cards face up will always win against the player who has no cards at all.

  6. longshanker, “So where are the different rules you’re referring to?”

    It is Westminster government policy to neither confirm or deny whether it has received legal advice. Why should Scot gov do so? If they do they will be attacked irrespective of whether they have or have not received legal advice because either
    1. They haven’t received legal advice in which case they are accused of basing their assertions on nothing at all – and if they have done so with this subject then all other subjects must be the same.
    2. The legal advice they have been given must be contrary to their assertions otherwise they would make it public – and if that’s true for this subject, yada yada).

    They would be setting a precedent for themselves that would not apply to Westminster.

    Also, Westminster have a veto over whether FOI information is disclosed or not – http://www.scotsman.com/news/politics/attorney_general_blocks_release_of_devolution_papers_1_2104336#.TzK4PNQINgI.twitter

    • “They would be setting a precedent for themselves that would not apply to Westminster.”

      So, rather than be better than Westminster and show the way in terms of ‘progressiveness’, you would rather they remain secretive and elusive and appear so.

      If you’re happy with your government acting that way then that’s fine for you.

      On the other hand, I agree with Kate when she said:

      “It is not good enough for the SNP – of all parties – to point the finger and say we are only doing as the Unionists did when they were in power at Holyrood. Or to suggest that they are only applying the same standards as Westminster does.”

      And straying slightly from topic, though not the principle of the topic, it’s the same argument the SNP used to justify cosying up to Rupert Murdoch – that the Unionist parties did it as well.

      It’s not good enough. I expect independence – if achieved – to bring something different, something better; not more of the same.

      When Alex Salmond used the phrase ‘humbug and hypocrisy’ to chide the Unionist parties he could have applied it equally to himself.


      • Only the pathologically shallow-minded see this as a choice between the extremes of obsessive secrecy as traditionally associated with the British state and a total abandonment of any form of confidentiality. This kind of inanity is symptomatic of an urge to attack the SNP/Scottish Government taking precedence over rational thought.

        Those of us who don’t so readily succumb to knee-jerk reactions and puerile simplisms realise that a sensible, workable policy of disclosure lies somewhere between these extremes.

      • “So, rather than be better than Westminster and show the way in terms of ‘progressiveness’, you would rather they remain secretive and elusive and appear so.”

        I’m saying nothing of the sort. When two parties are playing a game together they need to play by the same rules. Or do you think the SNP/Scottish Government should play the game with their cards face up while Westminster plays their cards close to their chest?

        When the game is over, each team can then choose what rules they follow going forward – that is the time for progressiveness. Unfortunately, until then we either stick to the Westminster rules or we give the game away.

      • Thankyou Peter

        Your offensive fulmination seriously undermines any point you make.

        Surprisingly, the pathologically shallow-minded vote as well, and their vote counts every bit as much as yours.

        Unsurprisingly, it fails me to see why, on whatever principle, the SNP would refuse to admit whether they had sought legal advice regarding EU membership.

        They have after all said that we would automatically become new members upon independence, yet this has been flatly contradicted by SNP opponents – most notably on the Big Debate when Ruth Davidson ambushed Nicola Sturgeon with her letter she prepared earlier.

        Given that membership of the EU forms a major part of the SNP’s post-independence strategy I would have thought it would be a good idea to disseminate the information that they were ahead of the game and in charge.

        Denying they may or may not have taken legal advice makes them look clueless and shifty. Especially given that the information commissioner has ruled it is in the public interest it should be disclosed.

        Perhaps the commissioner is insanely puerile, irrational and pathologically shallow for thinking such a thing.

        Maybe we should be told?


      • Offended appears to be your natural state. So reminding us how offended you are is redundant and tedious.

        It also comes as no surprise that your limited comprehension does not extend to a grasp of the reasons for the principle of confidentiality of ministerial advice. Reasons which I outlined in my initial comment in terms readily accessible to anyone of normal intelligence. Or, at least, anyone who is not overly preoccupied with being offended.

        On to your next glaring error.

        The SNP has not said the “would automatically become new members [of the EU] upon independence”. The SNP position is that Scotland would be a successor state and not an accession state. In simple terms, we would already be members rather than having to become members. Please ensure you have got your head around this important point before proceeding.

        Calling in aid Ruth Davidson is not going to help your case in any way at all. On the contrary, it suggests you are no better informed than she is. Which is sad.

        Those of us who are moderately well-informed know that the fuss being made about supposed “legal advice” on EU membership is no more than political posturing of the most puerile variety. We know this because, while Catherine Stihler and her ilk can evidently dupe folk like you into believing the matter is veiled in a mist of uncertainty and confusion, the reality is that the legal position (More accurately, possible legal positions.) are very well known. In fact, they were set out very concisely in a Commons Library Standard Note published in November 2011. (http://www.parliament.uk/briefing-papers/SN06110)

        The SNP’s position is identical to the most likely – by a long way – of these options. I don’t intend to get into explaining why here – not least because you already have rather a lot on your plate. In the context of this article the important point is that any advice which the Scottish government may have obtained is highly unlikely to be any different from options set out in the HoC briefing paper.

        The implications of this are obvious. But as you’re so busy nursing your righteous indignation to keep it warm, I’ll spell it out for you. Whatever legal advice the Scottish government may have obtained, if any at all, it cannot possibly be any more “embarrassing” for them or the independence cause than the aforementioned HoC briefing paper. Therefore, the only possible reason for refusing to release the information is a determination to defend the principle of confidentiality of ministerial advice.

        Another inane conspiracy theory evaporates in the gentle warmth of rational scrutiny.

      • This is not a theoretical question. Stephen Noon put in a FOI request asking the UK Government to dislose their legal advice on an independent Scotland’s position in the EU. They refused.

        So what people are presumably in favour of here is the SG being made to disclose legal advice while the UK Government is able to refuse to disclose their legal advice on the exact same question and go on spinning things any way they like.

        Bearing in mind that the legal advice given to both governments is not going to be clear cut. It’s going to be mebbes aye mebbes naw.

      • Indy – as Kate alludes to in this fine piece, two wrongs do not make a right. Surely looking morally superior to your political opponents by saying yes we sought legal advice or no we did not seek legal advice is better than refusing to say whether you sought it at all? Besides looking shifty, it looks ridiculous. I expect that from the Lib-Dems, Tories, Labour. It’s disappointing that it should be the same with the SNP.

        Thankyou Peter for your intelligently considered monologue.

        Fine point of detail – where did I say I was offended? I didn’t. Consequently, the rest of your well considered and ‘better informed’ diatribe is much like your argument – mostly redundant.

        The information commissioner ruled that it is in the public interest that the SNP should reveal whether they took legal advise or not. Not that they publish the legal advice – though that should come later.

        Due process etc – perfectly understandable and taken on board. What I find hard to fathom is the febrile fulmination coming from you regarding what is a serious point concerning the general perception of the SNP’s conduct.

      • What is “morally superior” about unilaterally abandoning a well-founded principle and a well-established practice?

        The problem is not with the Scottish Government’s conduct in this matter. Nor even with any general perception of that conduct. Such problem as there may be comes from the petty politicking of British nationalists and the ill-informed drivelling of their little band of amateur propagandists. The problem is theirs, not the Scottish Government’s.

  7. Very good points Kate. To add to them could I point out that the SG consulted on, and had huge public backing for, extending FOI to private companies, arms length bodies, trusts and other orgs who deliver public services. However, they then dropped the proposal when they were a minority govt.
    When introducing an amendment to the act as a majority govt. have they revived this? Apparently not. But they are trying to introduce a new exemption (lifted from Westminster) to stop people being able to ask for information about communications with the monarch or the heir to the throne!
    Oh, and the commissioner hasnt, yet, asked them to publish their legal advice. What they are appealing against, is her ruling that they should say whether they have obtained any!

  8. Peter, your offensiveness regarding journalists undermines your argument somewhat.

    For the SNP to not even confirm or deny that they have sought legal advice on Europe is ludicrous and makes them look shifty – even if they don’t want to share or not share that information or non-information as the case may be or may not be.
    I’d like to think that they had taken legal advice, but if they haven’t, it tells a story in itself – a story which people have a right to know.

    Indy – point taken, but given the importance of some of the information being sought to the Indy debate, the SNP could have handled things a lot better. I agree with Kate – it makes the SNP government look shifty and Westminster like. Taking it further, it makes them look untrustable. Potentially wrong I may be, but that is my perception of events.

    Airtteth – “You can’t have a fair game if each team plays by different rules.”
    The Information Commissioner is neutral and plays by a reasonably well defined set of rules. The Commissioner would be saying the same things about the coalition if they withheld information. So where are the different rules you’re referring to?

    • The SNP has tons of legal advice on Europe which has been published regularly. Eammon Gallagher etc – a whole dossier of it. I am sure Kate Higgins remembers all that.

      This issue is not about what legal advice the SNP holds on EU membership.

      It is about what legal advice the Scottish Government has been given and whether it has been given any. The SG is not going to willingly disclose that for 2 reasons – firstly because governments do not disclose legal advice and want to keep it that way and secondly because it would create a problem vis a vis the UK Government which is able to refuse to disclose anything.

      But the press know EXACTLY what legal advice the SNP has because it has been press released over and over again and I have no doubt that a new dossier of legal advice is being prepared by the SNP – or perhaps the Yes campaign – which will be published again.

      It will, of course, say what the SNP wants it to say. Just as any legal advice given to Labour & the Tories in their identity as the No campaign will say whatever they want it to say. That is how it works. At that point non-committed lawyers can chip in and give their legal opinion as to who is right. It will be arguable both ways. (The legal advice given to both UK and Scottish Governments will also be arguable many ways.) And it is primarily a political matter.

      People need to bear that in mind. For example you cited the letter that Ruth Davidson prepared as though it actually meant something. It meant absolutely nothing. The EU Commission does not comment on the internal affairs of member states. Scottish independence is at this point an internal matter within the UK. The SNP could write 10,000 letters asking the EU Commission to get involved in the debate around independence – they would get the same answer 10,000 times. No. So – not being completely stupid – the SNP has not written any such letter. Ruth Davidson was relying on the lack of understanding among the public to make that point by waving around her letter. She was treating the voters like idiots.

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  10. This entire article misses a crucial point. Many, probably most of the FoI requests referred to are being made mischievously in the sure and certain knowledge that they will be refused. Those making them can be confident that they will be refused by the SNP administration because they know that they would be refused by any administration.

    Confidentiality in the policy development process is a fundamental principle adhered to by all governments of whatever hue. And for very good reason. Administrations must be free to explore every aspect of a situation and examine all conceivable options when looking at ways to address issues of public policy. Similarly, those called upon to advise ministers must be free to do so without the fear that their deliberations will be misconstrued by being taken out of context or misrepresented by sensationalist media.

    Journalists – or perhaps one should better call them anti-independence propagandists – are well aware of this and so it is trivially easy for them to create an impression of excessive secrecy simply by contriving to have large numbers of FoI requests turned down.

    And it is of no great consequence that the administration’s refusal to supply information is occasionally overturned by the Information Commissioner. There is a huge difference between giving up confidential information because one is ordered to do so by a legally constituted superior authority and handing over that information voluntarily in contravention of established practice and against the wishes and reasonable expectations of the material’s authors.

    The obsession with information risks seriously hampering the process of policy formulation. And for what? In what way is the public interest served by knowing every notion and suggestion that is put to government only to be rejected? There is no concern for good governance behind these vexatious information requests. There is only the desire to find some titillating morsel that will make for a lurid headline and, hopefully, do damage to the government and/or the independence campaign.

    Just as the maxim that one should always tell the truth does not mean one should habitually eschew discretion altogether in favour of total, unconstrained candour, so the right to access to information does not mean that we have to know every last detail of absolutely everything the administration says and does as it goes about its business. Just as the former would make life among those with whom we must share the planet intolerable, so the latter would make effective government impossible.

    We need to know the stuff that is significant and relevant. For every piece of important information that we would benefit from knowing there are hundreds, perhaps thousands, of bits of information that would add nothing whatever to the sum of our knowledge or our understanding of what is going on. An obsession with secrecy may be bad. But an obsession with indiscriminate “openness” is no less unfortunate.

  11. Where does this end up? If governments have to publish legal advice they would end up in the position of having to take legal advice beforehand on whether the legal advice that could be published might give their opponents a stick to beat them with – and perhaps also take advice on what kind of legal advice they should seek to ensure that couldn’t happen. Which would render the whole thing a bit pointless, wouldn’t it? Because the process would then become about seeking legal advice in a way which was least likely to cause political damage rather than getting an honest opinion.

  12. In an ideal world everyone, even politicians, would be open and honest. However, this is not an ideal world, and for as long as there are opposing views, politicians will seek to exploit any weakness, real or contrived, within their opponents arguments and the information they are based on. There is no information In the political world that can not be spun to look positive or negative depending on your view. If an opponent has access to all the information on which your argument is based, they can spin it to contrive weaknesses which they can then exploit.

    You can’t have a fair game if each team plays by different rules.

    The poker player who plays with their cards face up will never win against those playing them close to their chest.

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