Friday, 13 July 2012

The Art of Redaction and Open Government.

In reviewing the recent case where the commissioner found against the Scottish Government with respect to the fact that it must reveal whether it received legal advice on Scotland’s post referendum status on its EU membership, I can only find myself in agreement with the commissioner.

The minor problem is that the commissioner did not go far enough, and order the posting of all shades of legal advice by the government, or any other involved entity who sought such on this subject. The major problem is that any party of whatever hue thinks it either could, or should, be able to keep this type of information secret from the Scottish people.

Think about it for just two seconds – what we’re being asked is to give our support to legislation, acts, referendums or other binding mechanisms, but accept that the reasons and advice driving our decision, and the decisions of those recommending our courses of action can be lawfully withheld from us. We’re to do what we’re told and/or asked like good little boys and girls simply because someone who may perceive themselves “our better” demands it, cajoles it, or uses smoke and mirrors to get their way.

That is not the Scotland to which I aspire.

The information commissioner did not go far enough because the office was not used, albeit that it may have pushed the boundaries of its jurisdiction, to demand that all parties release their legal counsel on this issue.

The political parties in Scotland have for far too long emulated Westminster’s secrecy tactics. All of the major parties are equally guilty, all of the major parties are equally at fault and all of them can come together in a cross party bill in Holyrood which will lift this veil of secrecy, that Scots will actually appreciate.

When Holyrood was inaugurated it was promised that it would not be “politics as usual”, we were told it would be “open democracy” – it’s time to keep that promise, it is one reason Holyrood exists. However, we find that we still have to make “Freedom of Information” requests in order to gain access to the mechanisms of government. This doesn’t feel very “open” to me.

All commissioned legal counsel used within Holyrood must be published, irrespective of who or which political party requested it. Furthermore, it must be freely available to the public, without resort to an information commissioner. The only possible exceptions would be to protect service personnel in a time of war.

Rightly there is concern about abilities of those giving the opinion; it is after all just that, an opinion. The law can therefore be quite clear, only QC’s or those with “X” years standing in the specific area under the law society of Scotland, or their equivalent international bodies should be able to advise the government unless they are respected and tenured academics in their fields.

Then we enter the area where the opinion giver may wish their privacy to be protected. It would be appropriate for those submitting the opinion to have the option of requiring their names, locations and personally identifying aspects contained within their counsel or reports to be redacted. At day’s end who actually wrote the opinion can often be irrelevant as long as the opinion is one by an eminently qualified individual AND open to public scrutiny. If there are major issues with the opinion given, these will soon be uncovered by that public scrutiny.

After the opinion is published there should be a set period for professional comment, like any quality peer reviewed paper, and a place for qualified reviewers to insert their comments. The final document becomes the basis of the information to be used in government circles.

Individual Scots then get to review the data our lawmakers see and decide if they, independently, wish to reach the same conclusions. We get to better understand the quality, scope and content of the advice and information that our parliament is basing its judgments upon.

If this simple law applies to all parties then its implementation will eliminate much of the waste in time, money and resources that we presently see as the parties squabble amongst each other like unruly three year olds; for such squabbling serves only one apparent purpose – it screams “we’re hiding something” and trumpets aloud “we can’t agree” which mimics the antics of Westminster. I thought Holyrood would and should be different.

Quite simply, it’s time to act like grownups and protect the source [even Fleet Street can manage that] while we disseminate the data. Quality data.

Otherwise, what point is there claiming Holyrood is different, better than Westminster’s cabal when we need to continue the use of the Freedom of Information Act to access what should be public knowledge?


  1. Thank you. Very well written as usual, and I agree. However, most of the Scottish have never travelled and may have no "reference" for what could be "freedom of information", "quality data", "quality and high technology"... Democracy seems to be a new (or not really showed or demonstrated in our country)concept, since they never really had it!

    1. Now's the time to start involving our people in the democratic process by resurrecting our ancient nation.

  2. You say:

    The only possible exceptions would be in time of war.

    But is it not the case that at present the so-called 'war on terror' is being used as a convenient excuse. And while our forces are still in Afghanistan is this not a 'time of war'?
    It seems to me that in time of war the need of the public to be informed is even greater, not less, whatever the threat.
    To be sure, careless talk costs lives, but so does lack of good information.

    1. Point taken. I may amend it to say "to protect service personnel in times of war"

  3. Be careful, Hazel, that you are not being drawn into the game being played at the moment by the No campaigners. This FOI is a political stunt to make the SG look secretive when the truth is that neither government has ever published its legal advice.

    Additionally, the SNP has a track record of subtly encouraging these attacks so it can pull a rabbit from its hat at the appropriate time, gaining all of the credit from the opposing side who is then made to look petty and stupid.

    Time will tell if this is one of those episodes.

    1. I understand your and agree with your position, but it still does not mitigate the argument for open government.


  5. "Think about it for just two seconds..."

    Which is what you seem to have done. And isn't it a pity that you didn't devote one of those seconds to consideration of the reasons why ministerial advice is generally considered confidential.

    Governments of any hue must be free to explore every avenue when developing policy. And the advice and information provided to them must similarly be unconstrained. The term "blue skies thinking" is more than mere jargon. It describes a process which is as much a matter of intuition as intellect. A process which of necessity produces a lot of garbage in the quest for the occasional gem of genius. Uncritical permission to explore every avenue is of the essence. And confidentiality is crucial. People must be free to think the unthinkable without the fear that their efforts will make them the target of public vilification or humiliation.

    Even short of such unbridled brainstorming, advisers to government must be allowed to explore all possible options, however distasteful they may be. They must feel able to express themselves without the concern that the media will latch onto some particular snippet of their submission, taken out of context, and focus exclusively on any controversial aspect of their thinking to the exclusion of more relevant material.

    The idea that only those passing some sort of intellectual fitness test should be deemed fit to advise government is the worst kind of elitism. Administrations should be able to seek advice wherever it seems reasonable to suppose that relevant knowledge, experience or expertise might abide.

    A culture has developed in which any secret induces a knee-jerk demand for the stripping away of all discretion. The desire for "openness", while perfectly worthy, has slipped its leash and grown to a clamour which threatens to totally discount the practical value of confidentiality. There is a very significant difference between a responsibly exercised right to know and a mindlessly obsessive need to know.

    1. Hence the redaction. I believe as you are advocating, that submissions should be able remain anonymous. However ultimately you and I are paying for these opinions in our taxes and you seem to be suggesting that something I'm paying for should be unavailable to me.
      A policy of redaction satisfies all criteria. It's not the names I'm interested in - it's the ideas behind government actions and policies.

    2. Redaction would be totally pointless. Especially if you got your way and limited the pool of experts to a chosen few. Deducing the author of any given paper would be altogether too easy. The issue is not anonymity but confidentiality. You want to place constraints not only on who can advise government but, effectively, the advice they can feel comfortable with giving. In what possible way does that improve government?

      And why? What purpose would be served by cluttering up the public domain with every oddball idea that ever finds its way into a submission however irrelevant it is to the policy that comes out at the end of the process? Once that process is complete it may be reasonable to seek to know the advice which informed it. But who other than the pathologically inquisitive and prying would be interested in all the crap that had been discarded?

      The difference between data and information needs to be much more widely appreciated.

    3. I understand your stance, but what I propose works well in other countries. Here for example is a link to one involving my husband.

      The bigger question is perhaps, once you permit and advocate a culture of confidentiality and secrecy, what are you allowing to happen behind the curtain, and when, how and by whom is this veil lifted?
      If there is nothing to hide, comfort of the participants should be a foregone conclusion.

    4. Ah! The false proposition that only the guilty have something to hide. Haven't seen that nonsense since the great ID card debacle.

  6. There are 101 ways to keep material secret without reference to opening files. I agree with Hazel that we gain the high ground while causing maximum embarrassment to the other lot. So it should be de rigeur to have transparency in such circumstances of political decision making.

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