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?